
    Peter Henavie, as Administrator, etc., v. The New York Central and Hudson River Railroad Company.
    Exceptions overruled and motion for new trial denied, with costs.—Motion for a new trial on a case and exceptions ordered to be heard in the first instance by the Appellate Division.
   McLaughlin, J.:

This action has been twice tried. On the first trial the plaintiff had a verdict, but on appeal the judgment entered thereon was reversed and a new trial ordered. (Henavie v. N. Y. C. & H. R. R. R. Co., 10 App. Div. 64.) Upon the second trial the plaintiff, under stipulation, read from the printed case used on the former appeal, selected portions of the testimony taken on the former trial and supplemented it by the testimony of only one witness. At the conclusion of the plaintiff’s case, upon defendant’s motion, a nonsuit was granted. Judgment was thereafter entered dismissing the complaint, from which the plaintiff has appealed. The testimony introduced on the last trial did not change the case m any material aspect from what it was on the former appeal, and this court then held that the evidence did not establish the fact that the defendant was guilty of any negligence causing the death of plaintiff’s intestate. Referring to the evidence from which it was then claimed that the negligence of the defendant had been established, Mr. Justice Ingraham said: uTlie engineer of this train would not be expected to anticipate that this plaintiff would have stopped upon the east rail of this track, right in front •of the approaching car, in such a way as to expose himself to being run over. Under these circumstances I can see nothing to ¡show that this engine driver was negligent in not stopping his train as it approached this place.” A majority of the judges sitting on the former appeal also held that the evidence did not show that the intestate, himself, was free from contributory negligence. But it is now claimed that the oral testimony given by Harrigan, the one witness called on the last trial, did establish that fact. This witness testified: “lam the witness whose testimony you have just been reading from. I have been examined in this case before. * * * I remember the night of this accident, on April 5,1895. I noticed Henavie, who was killed, after he left the curbstone'and during his progress to the track where he was hurt. I did notsee what he was doing while he was passing over the part of the street intervening between the enrbstone and the track. * * * He lookeT up and down like that (illustrating). WhenI saw him do that he was about the center between the track and the curb. ’ At that time the passenger train was in sight. I seen it come. The movements of his head was like that (illustrating) up and down, moved up and down. I cannot very well tell which way he looked first; he looked both ways.” The oral testimony of this witness when considered in connection with that which was read from the printed case on the former ap - peal, did not establish, and i fc would not have authorized the jury to find, under the former decision, that the intestate was free from negligence. In that part of the testimony of this witness which was read he said that he saw the headlight of the approaching train at the time the intestate first looked, and the intestate was then at the curbstone, and the train was at Forty-fourth street. It is apparent, therefore, that if the intestate looked again while between the curbstone and the track, he must have seen the train. The only 'conclusions possible are, either that he did not look when he turned his head in that direction, or that he saw the approaching train and took the chances of passing over the tracks ahead of it. That he was negligent under the first assumption was determined by the court on the former appeal. If the second conclusion be adopted, then it is equally clear that he was negligent. (Connelly v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 346.) It follows that the plaintiff’s exceptions must be overruled, and the motion for a new trial denied, with costs. Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred.  