
    (52 Misc. Rep. 577)
    STASSEN v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Street Railroads—Injuries to Person on Track—Contributory Negligence.
    Where plaintiff testified that when he was on a crossing, and within three or four feet of the track, he heard the noise of a wagon, and looked in the direction from which the sound came, and saw the wagon, but did not see any car, and the car was then five or six feet away in the same direction from plaintiff as the wagon, and he was struck by the car when he stepped .on the track, the evidence showed him guilty of contributory negligence.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 207, 208.]
    Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
    Action by William E. Stassen against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
    Argued before GILDERSDEEVE, MacLEAN, and AMEND, JJ.
    William E. Weaver, for appellant.
    Goodale & Hanson, for respondent.
   PER CURIAM.

This is an appeal by the defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury. The plaintiff was struck by a north-bound car while crossing the north cross-walk of Columbus avenue and 107th street. The accident happened on a clear morning. According to plaintiff’s own testimony he looked and saw no car, then walked to within three or four feet of the track, heard a wagon rattling, turned in the direction from which the sound came, looked south, and saw a wagon. He did not see any car, and started to cross over, and was just stepping on the track, when he heard somebody “holler.” The car was then five of six feet away. The car struck him and knocked him back in the direction from which he came. Clearly, the plaintiff did not exercise the care which the law requires to establish freedom from contributory negligence. Madigan v. Third Ave. R. R. Co., 68 App. Div. 123, 74 N. Y. Supp. 143.

The judgment, therefore, must be reversed, and a new trial ordered with costs to appellant to abide the event.  