
    A. L. & J. J. Reynolds, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (New York Common Pleas — General Term,
    May, 1894.)
    Plaintiff’s driver undertook to cross defendant’s tracks at a time when one of its cars was but twenty-five feet distant, without looking to see whether a car was approaching, and the wagon was struck and injured by the car. Held, that the driver was guilty of contributory negligence which would preclude a recovery, even though the defendant’s servants were also negligent in not preventing a collision.
    Appeal from a judgment of the District Court in the city of New York for the third judicial district.
    
      John Vernon Boumier, Jr., for appellant.
    
      L. B. Bunnell, for respondent.
   Per Curiam.

This action was brought to recover damages for injury to respondent’s wagon, resulting from a collision with one of appellant’s cars. In the case of Hamilton v. Third Avenue R. R. Co., 6 Misc. Rep. 382, this court, at General Term, held that where the plaintiff undertook to cross the railroad tracks, seeing a trolley car at a distance of some forty feet, it was negligence on his part to make such an attempt. In this case, while the car was not moving as rapidly as in the Hamilton case, yet the distance was only twenty-live feet ahead of the car, and it affirmatively appears and is uncontradicted that the plaintiff did not, in any way, look out to see whether a car was approaching him or not, or how far distant it was. In our judgment that constitutes negligence on the part of the servant which would preclude a recovery in this action.

It is argued on behalf of the respondent, however, that notwithstanding this negligence, appellant’s servants could, by the exercise of greater prudence and care on their part, have prevented the collision. Such an argument brings up the contention of comparative negligence, a doctrine not recognized by the courts of this state. As we understand our law, it is that where the plaintiff is guilty of any negligence which contributes to the accident or injury sustained by him there can be no recovery. That he did thus contribute to the accident in this case in our judgment is clear, and, therefore, we feel compelled to reverse the judgment and order a new trial, with costs to the appellant to abide the event.

Present: Bookstaver, Bischoff and Pryor, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  