
    Elise Enk, Resp’t, v. The Brooklyn City R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    Negligence—Railroad—Contributory.
    Plaintiff’s testator, with his wife and child, endeavored to take a car of defendant’s train at a point where trains stopped only on signal. The railroad was a single track with switches, and was operated by dummy engines. The train passed them and ran on a switch to allow another train to pass. The wife and child crossed the main track and boarded the train, but as testator was crossing diagonally the passing train struck and killed him. No disarrangement or disorder of the road was shown, and it appeared that deceased could have seen the train if he had looked, and that the engineer used every means to stop the train as soon as he saw the deceased. Held, that the deceased was guilty of contributory negligence, and that the complaint should have been dismissed.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    
      Thomas S. Moore, for app’lt; Julius Klamke {A. H. Bailey and J. B. Bell, of counsel), for resp’t.
   Dykman, J.

This is an action for the recovery of damages resulting from the death of August Énk, caused by the negligence-of the defendant. The cause was tried at the circuit before a, jury, and a verdict was rendered in favor of the plaintiff, and from the judgment entered upon that verdict, and from the order denying a motion for a new trial on the minutes of the court, the defendant has appealed.

The defendant operates a single track railroad upon Cypress-avenue, in Queens county, some distance beyond the limits of the city of Brooklyn, by dummy engines, and at intervals along the road there are sidings or turnouts to permit the passage of trains.

Cypress avenue, where this accident occurred, is an ordinary country road, and the trains of the defendant stop on signals for passengers.

About half-past eight o’clock in the evening of his death the-deceased left a'saloon near Austin’s Station, on the avenue, with his wife and child, intending to take a train upon the defendant’s road for Brooklyn.

As they were walking along the side of the track, a train passed them, and he raised his hand as a signal for it to estop. It was going towards Brooklyn, but instead of stopping it proceeded a short distance and run onto a siding to permit another train to-pass, which was then coming from the city of Brooklyn.

His wife and child continued on and crossed the main track and boarded the standing train in safety. He undertook to cross-the main track diagonally and was struck by the passing train and instantly killed.

There is no proof of any disarrangement or disorder on the railroad. The place where the deceased met his death was neither-a crossing nor a station, and he was not a passenger. The company owed him no especial duty, and there is no proof of negligence or carelessness in the operation of either of the trains.

The train which struck the deceased had the right to pass the other where it did, and the siding was made for that purpose. The train had just left a crossing and was moving at a moderate rate of speed. It was furnished with a head-light, and as soon as the-engineer saw the deceased he used every means to stop the train and did arrest the speed almost instantly.

We find no testimony in the case sufficient to charge the defendant with negligence.

On the other hand, we find proof of heedlessness and inconsideration on the part of the deceased. He evidently ran against the engine when he could have seen the headlight by looking, because the engineer of the down train ran out on the siding because he -saw the up train which struck the deceased three blocks away and his train was upon the siding when the deceased was killed. If he had looked toward the approaching train he would have seen it, for his vision in that direction was unobstructed for a thousand feet.

There was no obligation to sound a bell or whistle. Neither ‘train was at a crossing or station. One had retired to a side track to allow the other to pass and the other was passing, and both were orderly and regular.

We think the motion to dismiss the complaint should have been granted and that the judgment and order denying a motion for a new trial must be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.  