
    Carl F. Haupt, Appellant, v. The New York Central & Hudson River Railroad Co., Respondent.
    (City Court of New York, General Term,
    December, 1896.)
    Negligence — Contributory.
    Plaintiff, a truck driver, was familiar with the locality of a railroad crossing and had béen warned by the foreman of his employer to be oareful while working around it, as it was a dangerous one. Before reaching the tracks on the occasion in question he stopped and looked and listened, but-his view to. the north was obstructed by cars standing on a side track.
    He then proceeded and looked south for trains, but did not look to tb,e north after passing the obstruction, until the instant before the truck was struck by a southbound train. Held, that he was guilty of contributory negligence in not stopping to look and listen after passing the cars-which had obstructed his view.
    Appeal from judgment in favor of defendant dismissing the complaint.
    B. Loewy, for appellant.
    F. Loomis, for respondent.
   Fitzsimons, J.

The plaintiff'in this action was injured while attempting to drive across the tracks of the defendant at- One Hundred and Thirty-fourth street and Twelfth avenue, in the ’city of Hew York. He was the driver of a beer wagon and hafor six months prior to the accident driven over these tracks at this point every morning.

He was familiar with the layout of the tracks and what tracks were used by the trains running north and south.

The trains going north run on the easterly track.; those running south on the westerly main track. ■ Just east of the easterly main track is another track, called a siding, upon which are stored cars.

On the morning of the accident just north of One Hundred and Thirty-fourth street, some of the defendant’s cars were standing, and these standing cars shut off the view of the plaintiff, so that he was not able to see along the southbound track until he passed this obstruction.

Upon the morning in question the plaintiff stopped, looked and listened before he reached any of the defendant’s tracks, and hearing nothing, proceeded on his course; he looked south for northbound trains, and continued so to do until just the instant before his front wheel of his wagon was struck by the southbound train.

These are the facts as far as we understand they were testified to in the plaintiff’s behalf.

His complaint was dismissed by the trial justice, hence this appeal.

We think that, the trial justice, was right in dismissing the complaint.

In our opinion the plaintiff’s testimony clearly shows that he was guilty of negligence; in fact, to his carelessness was due solely the accident in question.

The plaintiff, as above pointed out, was very familiar with the locality in question, and he was warned by his foreman to be careful when working in that locality and he knew the dangerous condition of affairs at that point.

It was, therefore, his duty to stop, look and listen when he reached the place of danger.

The diagram in the appeal book, as well as the plaintiff’s testimony, shows that once he (plaintiff) personally passed the standing cars. Then he had really reached the danger point. Did he then stop, look and listen? He did not; he looked along the up track, but continued driving along, and when he looked along the down track he was then too late, for at that instant he was struck by the train on that track.

Had he minded the warning of his foreman as well as obeyed the legal duty resting upon him to stop when he reached the danger point, which in the instance was just as soon as he had passed the cars standing on the east side, he must have seen the train approaching from the north.

It was his duty to stop there, and his failure to do so was the cause of his collision with the train and was negligence on his part.

It was the duty of the trial justice, under the circumstances, to dismiss his complaint.

The judgment is hereby affirmed, with costs.

Van Wyck, Ch. J., concurs.

Judgment affirmed, with costs.  