
    George C. Hudson, Respondent, v. Erie Railroad Company, Appellant.
    
      Negligence —approaching railroad tracks after looking for a train, and not again looking until struck by it ten seconds afterwa/rds, while an electric bell was ringing.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while crossing the defendant's railroad tracks, it appeared that when the plaintiff was within 25 or 30 feet from the tracks, at which point his view to the west was unobstructed for a distance of 900 feet, he looked to the west and listened but did not see or hear any train coming from that direction; that he then looked towards the east and saw a freight train approaching at a comparatively slow rate of speed; that he hesitated for a second or two as to whether he would cross in front of the freight train, but decided to make the attempt and then started to cross' the tracks; that, although he would have to cross the east-bound track before he would reach the track upon which the freight train was coming, he did not again look for a train coming from the west on that track; that as he reached the east-bound track he heard a shout and saw the locomotive of an east-bound train 1.00' or 150 feet away; that he jumped back but was struck by the piston or .connecting rod of the locomotive and fell and his foot was run over.
    It further appeared that it took the plaintiff ten or eleven seconds to walk to the track from the point where he looked towards the west, and that during all this time an electric bell was ringing, which indicated the approach of a train.
    
      Meld, that a judgment in favor of the plaintiff should be reversed;
    That the plaintiff had not exercised that degree of care and prudence which a person is bound to exercise before crossing the track of a steam railroad.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 17th day of April, 1900, upon the verdict of "a jury for $5,000, and also from an order bearing date the 12th day of April, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    This appeal was transferred from the second department to the first department.
    
      Henry Bacon, for the appellant.
    
      John M. Gcurdner, for the respondent.
   Ingraham, J.:

There is a serious question whether the evidence sustains the finding that the defendant was guilty of negligence, which it is not necessary to determine, as we are satisfied that upon the whole case the finding of the jury that the plaintiff was free from contributory negligence is unsupported.

The plaintiff, an active young man about twenty years of age, was employed as a clerk in a store located near the depot of the defendant in the village of Monroe, and was familiar with the operation of the railroad at that locality, upon which trains were in the habit of passing at great speed. He left the store where he was employed to deposit a letter in the post office, -which was located just behind the railroad depot. Leaving the post office he walked towards the tracks to recross. He says that when he got to the corner of the depot, about 25 or 30 feet from the track, where his view of the track to the west was unobstructed for about 900 feet, he looked to the west and listened for a train, but could not see or hear one approaching from that direction; he then looked to the east and saw an approaching freight train coming up grade at a comparatively slow pace. He stopped and hesitated a moment as as to whether he would cross in front of the freight train, determined to make the attempt, and then started to cross the tracks. There was a large bell, which was operated by electricity,' to give, notice of the approach of trains. This bell at the time was ringing, and indicated that a train was approaching. Before -he had reached the track upon which the freight train was coming he had to cross the track of the east-bound train, and without again looking for a train coming from the west, although he had an unobstructed, view of the track in that direction for about 900 feet, he walked along until he came to the east-bound track, when he heard a shout, and then turning his head, saw the engine of an approaching train 100 or 150 feet away. He jumped back, but in some Way was struck, causing a fracture of the left arm, and falling, his foot was run over, from which resulted its amputation. Several of the witnesses who saw the accident testified to his walking down and stepping upon the track in front of this approaching train, throwing up his arms and jumping back, then in somé way falling down. Plaintiff says that his arm was struck by the piston or connecting rod of the loco.■motive, and this is corroborated by several of his own witnesses. It is quite evident that he was not struck by the front 'of the engine, for had he been,.considering the speed of the train, he would have been thrown a considerable distance, yet the evidence is. uncontradicted that he fell alongside of the track. The testimony of the engineer and the fireman of the west-bound train, and the engineer and the other employees of the freight train, tends to show that the plaintiff never was on the track in front of the approaching train, but that as he started to cross the track, concentrating his attention upon the freight train approaching from the east, he got so near to the engine of the east-bound train before he discovered it, that in some way his arm was caught by the piston or connecting rod of the locomotive,.he was thrown down and his foot got under the wheels.

’. It does not seem to me, in determining this question, that it is at all material which view is taken. Whether the plaintiff stepped upon the track in front of this approaching train, or whether he walked so near to the locomotive that he was struck, is immaterial. What is evident and undisputed is that he walked from a point twenty-five to thirty feet from the track without looking or listening for an approaching train, with his attention attracted by the train approaching from the east, and deliberately walked in front of or so near the train approaching from the west as to be struck. It undoubtedly is true that the plaintiffs attention was distracted by the approaching freight train. The approaching freight train, however, did not in any way obstruct the plaintiffs view of the train from the west or relieve him from the obligation of making some investigation as to whether there were trains approaching from the west which would interfere with his crossing the track in safety. The plaintiff testified that it took him about seven and a half seconds to walk from the place, from where he looked toward the west, to the track itself, and that, when about ten or twelve feet from the track, he hesitated one or two seconds, and that it was ten or eleven seconds from the time he started to walk to the track until he was upon it. Thus he walked twenty-five to thirty feet, hesitated for a second or two, and then started up again, walking upon the track without taking any care to ascertain whether or not there was any approaching train which would render his crossing the track dangerous.

It seems to me that this is, under the rule well established in this State, inconsistent with that care which a person is bound to exercise before crossing the track of a steam railroad. The question is not unlike that presented in Woodard v. N. Y., L. E. & W R. R. Co. (106 N. Y. 369) and Tucker v. N. Y. C. & H. R. R. R. Co. (124 id. 314). In this latter case the court said: “ But, if the inference was permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross and was then eleven feet from the south rail of the first track. To look then and not again, to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise.” In Young v. N. Y., L. E. & W. R. R. Co. (107 N Y. 500) was presented a question similar to that under consideration. The accident in that case happened upon the defendant’s railroad passing through the city of Binghamton. . There were two tracks, one used for eastward and the other for westward-bound trains. The plaintiff was walking in the center of the street which crossed these tracks, and passed through a space between two sections of a freight train standing upon the south track, and, stepping upon the north track, he was struck by the engine going west and badly injured. The plaintiff testified he looked while passing over the space of about sixty feet and until he came within fifteen feet' of the south track of the railroad, and that he did not and could not see an approaching train on the north track. This north track was straight for at least a half a mile toward the east, and the moment that the plaintiff got upon the middle of the space between the two tracks he could have seen a car approaching from the east from that distance. The court said: “ He was walking very rapidly, perfectly familiar with the location and the use which was ordinarily made of the two tracks, and, as he crossed through the opening between the parts of the standing freight train, instead of looking east from which direction a train would ordinarily come on the north track, he looked to the west and heedlessly stepped immediately in front of the engine. As he passed over the north rail of the south track a single glance to the east would have disclosed to him the approaching train and he would have escaped injury. He was in a place of. some peril in crossing these tracks and should have taken some care to protect himself. He was in no danger from the train on the south track as that was stationary. If that to some extent obstructed his view upon the north track, there was so much greater reason for him to take an observation the moment he had crossed the south track, so as to see whether he could cross the north track with safety, and for not doing so he is chargeable with contributory negligence, which bars his recovery.”

If the plaintiff in this case before stepping upon the track had turned his head and looked again or taken the slightest precaution to see whether a train was approaching from the west, he must have seen the train. He gives and attempts to give no excuse for this neglect. No necessity compelled him to cross this track in front of the freight train that was approaching from the east, and no reason is given why he did not look to see if a train was approaching from the west when he was such a distance from the track that to look, would have enabled him to avoid the danger. He says he looked when he was twenty-five or thirty feet away from the track, just as he came around the corner of the depot. If his story is true, •this train was not then in sight, and yet it came in sight and reached ■the point which he intended to cross before he was able to cross in safety. The object of looking was to see if a train was in sight which would make it dangerous for him to cross the track, and the duty to look was not complied with by looking for a train when at such a distance from the track that, although the train was not then visible, it could come in sight after he looked and be dangerous in crossing the track. Plaintiff was bound to look when he was in such a situation that he could see whether there was a train in sight which would prevent his crossing the track in safety. Looking before he reached the point that would give him that information, was not performing the duty resting upon him and which he was bound to perform before he could be said to be free from contributory negligence.

I cannot escape the conclusion that, within the principle established in this State, this was negligence which constitutes a bar to the plaintiff’s recovering.

I think, therefore, that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred.

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