
    RICHARD HALEY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
    
      Contributory negligence — what constitutes.
    
    Appeal from a judgment in favor of tlie plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes.
    The plaintiff, a track-repairer of the defendant, received the injury, to recover damages for which this action is brought, at the Dutchess Junction upon the defendant’s road. A freight train was due from the north at the point in question, and, on arriving near the junction, was divided by detaching several box cars from the train, by pulling out the pin which connected the train at the rear of the platform cars with the box cars, which were to be left at the junction. The forward portion of the train, attached to the locomotive, passed on, and the detached box cars passed on down the track, propelled by their own momentum only, whereby a considerable •space was left between the dissevered sections of the train. The plaintiff had been employed repairing the track, and stepped off on the arrival of the train ; but, after the passage of the section of the train which was attached to the locomotive, without noticing that the train had been separated, stepped back on to the track to resume his work, when he was struck by the detached rear end of the train, and so injured that amputation of one of his legs was necessarily performed. When struck he was stooping down, with his back to the north, from which direction the train came. The plaintiff had frequently seen trains separated in this manner at that place, and in this case he resumed his work upon the track as soon as the forward part of the train passed him, without looking up the track northwardly, at all. The other workmen who were engaged upon the track at the same time with the plaintiff, saw that the train was separated, and that the box cars were following on the same track, and remained off the track until the detached rear end of the train had passed. They testified that there was no difficulty in seeing the detached box cars coming, and that the plaintiff must have seer them if he had looked.
    
      The General Term held, that the plaintiff was guilty of contributory negligence, and that he was not entitled to recover. {Haskins v. N. 7. Cen. and Hud. R. R. R. Go., 65 Barb., 129; 56 N. Y., 608.)
    
      Frank Loomis, for the appellant. Anthony da Losey, for the respondent.
   Opinion by

Talcott, J.

Present — Talcott and Pratt, JJ. Barnard, P. J., not sitting.

Judgment and order denying new trial reversed and new trial granted, costs to abide the event.  