
    Benjamin Harder, App’lt, v. The Rome, Watertown and Ogdensburg R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    
    Negligence—Crossing railroad track at a place not a crossing— When person guilty of contributory negligence—When non-suit proper.
    The plaintiff undertook to cross the defendant’s tracks where he had at best a mere license to cross. Prom the curvature in the tracks and intervening erections, his range of vision, in the direction from which the engine that injured him came, was limited. The way was open to him to the station (whither he was going) by the street. He voluntarily left the street, which was protected by statutory regulations, and took a course protected only by common law. The plaintiff was somewhat intoxicated at the time. If he had been vigilant, he could have seen the approaching engine in ample time to avoid it. With his face away from the engine, he slowly moved upon and across the track. He did not see the engine at all before it struck him. He did not hear the warnings that others cried out to him Held, that the plaintiff’s negligence contributed to his injury. That he was properly non-suited..
    Appeal from a judgment of non-suit upon a trial before a jury at the St. Lawrence circuit.
    The plaintiff attempted to walk across the defendant’s track, and was struck by its engine and injured. This action was brought to recover damages for the injury, the complaint charging the defendant with negligence. The injury was sustained at Ogdensburg. Two tracks of the defendant’s road so intersect Commerce street in the city of Ogdensburg as to form at the southeasterly angle of intersection a triangular lot of land. This lot fronts upon Commerce street upon the west, and the track forms the hypotenuse of the triangle, extending with a slightly inward curve beyond the entire lot. The point of the gore or triangle is used for a small garden. The Utica house fronts on Commerce street. Its northerly side is at right angles to the street, and extends easterly until the rear corner of the main building is within seven feet and nine inches of the nearest rail of defendant’s track.
    A kitchen extension of the hotel, less than half the width of the hotel, extends in line with its south side still further westerly twenty-two feet, until its rear corner is within four feet and nine inches of the same rail. There is -a rear side door of the hotel opening towards this track of the railroad. From this door to within four feet five inches of the rail, is a platform. This extends along this rail for about sixteen feet, and is between it and the house, and belongs to the house. Directly north of this platform, across the two tracks and hn open space beyond, is the defendant’s passenger station. It is a common practice for foot passengers to walk across the tracks and this open space between the hotel and the station. Passenger trains sometimes stop opposite this platform, and passengers get on and off the cars there. Commerce street extends along in front of the station. On June 27,1887, the plaintiff, at about 4:15 p. M., intending to take the 4:30 p. m. train, then standing upon another track upon the opposite side of the station, entered the Utica House from Commerce street, walked through it •and out of the rear door upon the platform. He had been -drinking to some extent. He first stepped from the platform upon the nearest track, when he observed an engine upon one of the tracks near Commerce street. He stepped back upon the platform. The engine moved past him upon the outer track to a point beyond a switch and, as the plaintiff says, behind the kitchen extension. The switch was about eighty-six feet beyond him, and it is probable the engine went several feet beyond it. The switch was moved, and the engine started to return upon the track nearest the platform. Standing upon the edge of the platform one could see 130 feet, measuring to a point between the two nearest rails. Standing within a foot of the rail, one could see 190 feet, measuring to a like point. Standing on the middle of the platform, that is half way between the door and its outer edge, one could see only forty-five feet. The plaintiff stepped on the nearest rail when the engine was within forty feet of him. Witnesses on the part of the plaintiff did not remember hearing the bell rung. Witnesses on the part of the defendant testify that they did hear it. The rate of speed of the engine when it struck the plaintiff is variously estimated from two to ten miles an hour. The engineer in charge of the engine did not see the plaintiff. Other persons did see and shouted to him, and to the engineer, but did not attract the attention of either.
    
      J. W. Stone, for app’lt; E. B. Wynn, for resp’t.
   Landon, J.

From the facts as given above, we think the plaintiff’s negligence contributed to his injury, and the non-suit was proper. He undertook to cross the tracks where he had at best but a mere license to cross. From the curvature in the tracks and intervening erections, his range of vision in a southeasterly direction was limited, and therefore a vigilance corresponding to the obvious danger was-required. It may be said that this situation imposed greater and more active vigilance upon the defendant. This may be conceded without in the least exempting the plaintiff from like vigilance. The way was open to him to the station by Commerce street. The statute law and possibly the ordinances of the city had with respect to that and other streets imposed certain definite duties and restrictions-as safeguards to the plaintiff and others. He voluntarily left the street which was protected by these definite and specified safeguards and took a course protected only by common law regulations. These are vaguely defined as-enjoining upon the defendant the duty to use in respect to-persons crossing the tracks, reasonable care in the movement of its trains. Barry’s case, 92 N. Y., 289; Bryne’scase, 104 id.; 362; 5 N. Y. State Rep., 722. Possibly the-defendant did not use that care. But it is plain that the-plaintiff, if he had been vigilant, as he ought to have been, could have seen this approaching engine in ample time to avoid it. With his face away from the engine he slowly moved upon and across the track. Probably his senses-were less acute in consequence of the liquor he had been drinking. Probably as the engine had just passed in one-direction he did not think it would return in the other. He did not see the engine at all before it struck him. He did. not hear the warnings that others cried out to him. Plainly whatever the cause, his vigilance was dormant, and not active.

The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.  