
    (75 Hun, 579.)
    KEILT v. STATEN ISLAND RAPID-TRANSIT R. CO.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Contributory Negligence—Evidence.
    In an action for injuries caused by the falling of a gate while plaintiff, with a number of other persons, was going under it to defendant’s boat landing, testimony by plaintiff that he first saw the gate falling when it was about 18 inches above his head, and a little in front of him and that he continued to advance, but, before he could clear the gate, it fell on him, does not necessarily show contributory negligence, as the crowd may have prevented him from doing otherwise.
    Appeal from circuit court, Kings county.
    Action by Bernard Keilt against the Staten Island Rapid-Transit Railroad Company to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $250, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
    On the 15th day of May, 1891, the plaintiff, who resided in Jersey City, was on his way from the town of Gravesend, in Kings county, to his home, in Jersey. He came by way of the steam railroad from Gravesend to the ferry at Bay Ridge. With the other people who were on the train, he came through a passageway, which was fenced in. on his way to the boat at the foot of the pier. At the end of this passageway was a wooden gate, which, when open, was suspended above the heads of the people who were passing through the passageway, and was closed by letting it down from its elevated position to the walk in the passageway. The plaintiff was on his way through the passageway at a gait between a walk and a run, with all the other passengers who left the train, on their way to the boat, when suddenly, and without any previous warning, without the knowledge that there was a gate suspended over his head, one of the employes of the defendant jumped up and pulled down the heavy gate upon the plaintiff’s head, knocking him to the ground, and causing him damage, for which the jury awarded him 8250. The plaintiff contends that the injuries sustained by him were due entirely to the negligence of the defendant’s agents and servants in pulling down this. gate upon the head oí the plaintiff without any notice or warning; and that the defendant has not shown itself free from negligence in this regard..
    Argued before DYKMAN and PEATT, JJ.
    Tracy, Boardman & Platt, for appellant.
    Magner & Hughes, (Thomas F. Magner, of counsel,) for respondent.
   PEATT, J.

The plaintiff having prevailed before the jury, we must regard his version of the facts as established. He testified that he first saw the gate descending upon him when it was about 18 inches above his head, and a little in front of him. He was going fast,—upon a “dog trot,” as he described it. He continued to advance, but, before he could clear the gate, it fell upon him, and inflicted injury. The defense argue that this recital convicts plaintiff of negligence, in that he did not stop before going under the gate. The jury did not take that view; neither do we. The time that elapsed from the time he saw the gate until it struck him was probably less than a second, and he might well judge that the safest way to avoid the gate was to hasten forward. The crowd behind him might well impede any effort to return, and it would seem that his safest plan was to hurry forward. The charge of the court was as favorable as defendant had a right to ask. The negligence of defendant is clear in having a gate suspended above the passageway, which would fall so rapidly, and which could not be controlled by the operator. Judgment affirmed.  