
    Andrew McClure, Appl’t, v. New York Central & Hudson River R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1886.)
    NEGLIGENCE — CONTRIBTJTOBY.
    The plaintiff, while standing on defendant’s track at the end of one of the ties, bent forward so that the back part of his body protruded toward the rails, and while in this position he was struck by one of defendant’s engines, which was moving at low rate of speed, and injured thereby. Held, that the injury to plaintiff was caused by his own negligence.
    
      B. R. Heyward, for appl’t; Harris Rudd, for resp’t
    The plaintiff’s work was at a forge which stood on the north track of the bridge over the Hudson river at Troy. The south track was entirely completed and was being constantly used, locomotives passing every five minutes. Plaintiff and all the workmen had orders to look out for locomotives and to keep off the track. He left his forge on the north track, and crossed oyer on to the south and running track. In going over he looked both ways for locomotives and saw an engine at Green Island and another on the Troy side about the entrance of the draw. He stepped over on to the south track, and stood on the extreme southern end of one of the ties of that track, in a leaning position, with his left hand on his knee, looking down and talking with a man who was on a scaffold suspended below the tracks, at work riv#ing. In about two seconds after he reached the tie he looked up and down and saw two engines. The one at the east of him at the time he saw it last was about 30 or 40 feet from him. Plaintiff did not look again, but stood there twenty-eight seconds without looking when the engine either struck him or frightened him so that he sprung out from the ties ten or fifteen feet,- and fell upon some timbers on the water below.
    The locomotive protruded about six inches over the rails so that there were at least twelve inches between the locomotive and the plaintiff if he had not leaned over.
   By the Court.

We have examined the evidence in this case and there can be no doubt as to the facts. We think that the injury which happened to the plaintiff, was caused by his own negligence. The engine was moving very slowly — about four miles an hour. The plaintiff placed himself in a position of danger. He probably thought that, as he was at the extreme end of the tie, the engine would not touch him. And this might have been the case had he not. leaned forward and thus protruded the back part of his body, so that it came within the reach of the engine.

It does not seem to be necessary to go over the evidence in this opinion.

The judgment is affirmed with costs.

Bocees and LeabNed, JJ., concur.  