
    Leopold P. Littmann, App’lt, v. The Dry Dock, East Broadway & Battery Railroad Co., Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed November 27, 1893.)
    
    Negligence—Street railroad—Contributory.
    Plaintiff attempted to hoard an open street car which was standing still, when it started up and plaintiff came in contact with a truck which stood between the curb and track and which plaintiff had seen while approaching the car. It was not shown that the driver or conductor saw either the truck or the plaintiff. Held, that plaintiff was properly non-suited.
    Appeal by plaintiff from judgment of nonsuit.
    
      Abm. Gruber, for app’lt; Jno. M. Scribner, for resp’t.
   Van Wyck, J.

The plaintiff, a man forty-two years old, in good health, and, at the time of the accident, unincumbered, seeks to recover for personal injuries sustained by him while standing on the platform step running along the side and entire length of an open or summer car of defendant’s Grand street line. He was the only witness who testified in regard to the circumstances of the accident, and in substance swore: That while the car was standing still on Grand street, headed east, he approached it from the rear and south, and without signalling either the conductor or driver, stepped up on the right hand side foot rail just ahead of the rear platform, and in front of the rear cross seat, when the cars without any warning started ahead, and that as “ he was going upon the step to see for a place,” and within five seconds after he stepped upon the rail, his body came in contact with a red truck, which he had seen as he approached the car, and before boarding it, standing in the street between the southerly sidewalk and the car track, about fifteen feet in advance of the car, and headed in the same direction. There was no evidence that the driver or conductor saw either the truck or the plaintiff, or perceived the danger; while it is in proof that the plaintiff saw the truck before he attempted to board the car; and if he did not perceive the danger, how could it be expected that the driver or conductor could perceive the danger without proof that they had seen the truck; and if they were careless in not seeing it, the plaintiff was more careless in not avoiding the danger, after seeing the truck, by holding himself within the step rail line.. The plaintiff was properly nonsuited. See the opinion of Earl, J., read for reversal in Moylan v. Second Ave. R. R. Co., 128 N. Y., 583; 37 St. Rep., 871.

The judgment of nonsuit affirmed, with costs.

Hewburger and McCarthy, JJ., concur.  