
    John Moore, App’lt, v. The New York Central & Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Negligence—Duty of foot passenger to look at a crossing.
    In an action against a railroad corporation for negligence, the plaintiff testified that he ,‘toad with a friend about fifteen feet from the track when a train passed; that from that point he could see an approaching train 200 feet away; that he did not look again, walked onto the track and was struck by another train. Held, that he could not recover, and that he was not relieved from the duty of looking by a belief that the company, by its flag-man, would give reasonable notice of the approach of a train.
    Appeal from judgment entered upon a nonsuit at circuit. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant
    
      F. J. Parmenter (R. A. Parmenter, of counsel), for app’lt; Frank Loomis (Levi Smith and Charles F. Patterson, of counsel), for resp’t.
   Putnam, J.

On the trial, at the close of the plaintiff’s evidence, defendant moved for a nonsuit on the ground that the testimony failed to establish plaintiff’s freedom from contributory negligence. The motion was granted by the court, and from the judgment rendered on such ruling this appeal is taken.

Plaintiff, while walking with a friend across the defendant’s track on a highway in the city of Troy, was struck by one of defendant’s engines coming from the south and injured. The evidence clearly shows that at a point about fifteen feet from the track, where plaintiff stood before he was injured, and from such point to the track, there was an unobstructed view southerly down the track for thirty or forty yards or more, and that the plaintiff at this place (fifteen feet from the track) looked for approaching trains, walking from thence onto the track without again looking.

We think that on such evidence the holding of the trial judge was correct. The plaintiff, if he looked and listened, must have seen the approaching train, and of course, if he did, it was negligence to go upon the track. If he did not look and listen, as he himself swore, he was clearly negligent Plaintiff’s own evidence establishes his contributory negligence. In many cases nonsuits have been properly directed by the trial judge on the ground that the evidence on the part of the plaintiff failed to establish freedom from negligence of the party injured. But in this case the plaintiff himself testifies to the facts showing his own negligence. He states that he stood with his friend about fifteen feet from the track when the train passed, then looked for an approaching train, and started to cross it. He did not look again; he did not think of looking. In other words he walked for fifteen feet where he could see down the track about 200 feet on to it, in front of an approaching train, which he must have seen had he looked. Prom the place where he started, fifteen feet from the track, there were no obstructions, no cars on the track, not anything to prevent his seeing an approaching train, or to divert his attention. The evidence of the plaintiff was not contradicted, and, we think, compelled the trial judge to grant the motion for nonsuit. Daniels v. S. I. R. T. Co., 125 N. Y., 410; 35 St. Rep., 435; Rodrian v. N. Y., N. H. & Hartford R. R. Co., 125 N. Y., 526; 35 St. Rep., 814; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y., 369; 11 St. Rep., 169; Whalen v. N. Y. C. & H. R. R. R. Co., 40 St. Rep., 566; Fleissner v. N. Y. C. & H. R. R. R. Co., id., 711; Nolan v. N. Y. C. & II. R. R. R. Co., id., 848.

The evidence does not disclose any act of the flagman which excused plaintiff from the duty of looking down the track before he stepped upon it. 4

The Rodrian case, above cited, and many other cases, hold that a pedestrian is not relieved of the duty of looking for approaching trains before he steps on the track in reliance that the railroad company will do its duty, and give reasonable notice of the approach of a train.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  