
    Walter L. Meserole, Adm’r, Pl’ff, v. The Brooklyn City Railroad Company, Def’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Hegligence — Contributory.
    Plaintiffs intestate, upon alighting from a train, immediately turned up his collar, put a muffler over his ears, and proceeded to cross the tracks without looking or listening, regardless of a caution by the conductor, and was struck and killed by an engine coming from the opposite direc-. tian, which had a headlight burning. Held, that deceased was guilty of contributory negligence, and that a nonsuit was properly granted.
    Motion for new trial on exceptions ordered heard in first instance at general term, after dismissal of complaint.
    
      Carpenter & Boderic\ for pl’ff; Morris & Whitehouse, for def’t.
   Pratt, J.

This action was brought by the plaintiff as admintrator to recover damages sustained by the plaintiff and the other, next of kin of Thomas Meserole, deceased, by reason of the death of said deceased,4 caused by the negligence of the defendant, its agents or servants.

At the close of the testimony the action was dismissed upon the ground that it appeared from the evidence that the deceased was guilty of contributory negligence, and that the defendant was free from negligence.

We think the case was properly disposed of upon the first ground. If the case had been submitted to the jury and a verdict rendered that no head light was burning upon the engine which struck the deceased, it would have been incumbent upon the court to set it aside as against the weight of evidence under well established rules. It follows from the fact that a head light was burning that if the deceased had looked in the direction of the approaching train he could not have failed to see its approach and' avoided it.

But the question is not left to inference. The fact clearly appears that he did not look, but although notified to look out by the conductor of the car from which he had alighted, he proceeded to cross the track upon which the train was approaching without turning his head in either direction to see if any train was coming.

The evidence clearly shows that deceased neither looked nor listened for an approaching train, but started to cross as soon ás the rear of the train from which he alighted had passed him some four or five feet

Had the deceased turned to look after he had passed the rear of the car he could not have failed to discover the danger.

It is no answer to say that the train from which he alighted obstructed his view, as it was his duty to look after he had passed the rear of that train before he stepped upon the opposite track.

The whole conduct of the deceased showed a reckless want of care; instead of waiting until the train from which he had stepped had gone a proper distance so as to disclose an approaching train, he immediately turns up his coat collar and puts a muffler over his ears and proceeds to cross the track, without looking or listening, and regardless of a caution given him by the conductor.

.Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur..  