
    August Wahler, Plaintiff, v. The Long Island Railroad Company, Defendant.
    Second Department,
    March 18, 1910.
    Railroad — negligence — injury at grade crossing — contributory negligence.
    Action to recover for personal injuries received by one who was struck by a train at a grade crossing. Evidence examined, and held, that the plaintiff was guilty of contributory negligence in that, had he looked as he testified, he must have seen the train and, seeing it, had attempted to cross in front of it.
    Motion by the plaintiff, August Wahler, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term in June, 1909.
    
      
      Henry M. Eater [George F. Elliott with him on the brief], for the plaintiff.
    
      William, G. Beecher [<Joseph F. Eeany with him on the brief], for the: defendant, -
   Thomas, J.:

Metropolitan avenue runs north and south. The deféndant’s railway crosses it obliquely, but in- a general easterly and westérly direction. The plaintiff, was struck by defendant’s train moving westerly. The plaintiff walked in a generally southerly direction until he came to the gates, and, finding them raised, turned and walked southeasterly across Metropolitan avenue. His evidence as to looking is somewhat confused, but it is certain that he did look to the right and to the left, and that he did look to the left, first, while walking upon the -sidewalk toward the center of Metropolitan avenue and hence towards defendant’s tracks, and it is certain also that when he was fifteen feet from the track on which the train came he looked to the left and saw no train, and the-fact seems to be that just as he was stepping over the first rail of the track of the oncoming train he looked to the left again and saw. the train about 100 to 200 feet away. Then, to use his words: “ When I saw this engine one hundred and fifty feet away I thought I could make it, get over safe for the minute, and I found I couldn’t make it and tried to make my way back and lost myself, and that is the last thing I remember for three or four days. I got excited.” In another place the witness explains himself: When I got to the point where the gates were on Metropolitan avenue- just before I came to the crossing the gates were up. I got as far as the gates and had to turn to my left to get in the street — got from the street about fifteen feet from the tracks, and I seen — glanced to my left and I took another glance and got to about the first rail — glanced to my right and heard a rumbling and I heard a bell and I seen an -engine coming right on top of me — glanced to my right and to my left and I seen an engine coming on top of me and for a minute I didn’t know what to do —: for a minute I thought I could make it.” While, on account of the curve, the view to the right was limited, the view to the left was unlimited for a mile or two, and it was utterly impossible for the plaintiff to' have looked with any discernment when he was fifteen feet from the track without seeing that the train was approaching and that there was probably not time for him to make the passage in front of it. Although it is claimed that the upraised gates gave assurance that no train was approaching, he did not rely wholly upon that, but used his eyes to aid a safe crossing. It must be inferred that if he looked he saw what would appear to a person. looking. A train of cars advancing toward him on a track intersecting his way was not an object to elude his sight if he did look, and if he did not see such object it is evident that his look was grossly careless and his care shallow. It .seems also that as he was about stepping over the rail he saw the train, and that he thought he “ could make it ” and kept on his way. The train was then some 150 feet away, and there was nothing to prevent his stepping back and allowing the train to pass. It is true that, according to ..his evidence, the gates were closed about this time, but there is no pretense of any other diversions or any possible obstruction to his stepping back, nor was he so confused at the moment but that he thought he “ could make it,” and it was after he found that making it was perilous that his confusion arose. For the reason that he looked when fifteen' feet from the track, and either saw_ the train and kept on his way, or did not see it through his negligence, and that he looked again and saw the train when he was about to step upon the track, and negligently concluded to- attempt passage in front of it, I think that the complaint was properly dismissed and that judgment should be ordered for defendant, with costs.

Present — Hirsohberg, P. J., Woodward, Jenks, Burr and Thomas, J«L

Plaintiff’s exceptions overruled and judgment unanimously ordered for defendant, with costs.  