
    Nicholas Blaiser, App’lt, v. New York, Lake Erie and Western Railroad Company, Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 26, 1888.)
    
    ^Negligence op bailboad tbain apfboaching a cbossing—When a QUESTION POB THE JUEY.
    The plaintiff on approaching the crossing of the defendant’s railroad at the intersection of a certain street in the city of Buffalo, looked both ways. There were seven tracks, occupying a space of over 100 feet. And the night was dark, so that he could not see over 100 feet. He saw no trains approaching, but half way over was stopped by a switch train and stopped a moment, when he was struck and injured by an engine which had no head-light and which gave none of the statutory signals of its approach. There was no flagman at the crossing. Held, that the question whether the plaintiff was guilty of contributory negligence should have been submitted to the jury.
    Appeal from a judgment of the general term of the superior court of the city of Buffalo affirming a judgment in favor of the defendant entered upon a non-suit ordered on the trial of the action before a jury at the trial term.
    This action was brought to recover damages for injuries sustained by the plaintiff, caused by being struck by defendant’s engine while he was crossing the tracks of the defendant on Smith street, at the intersection of Exchange street in the city of Buffalo. These streets are public highways in the said city, intersecting one another at right angles, and are crossed diagonally by seven tracks of the defendant’s road, covering about one hundred feet in width and occupying the whole of Exchange street. . Immediately to the west of Smith street are the car and freight yards of the defendant, into which are switched for storage and repairs, cars of the company. At Smith street the tracks of the defendant make a sharp curve across Exchange street.
    On the 24th of November, 1882, at seven o’clock in the evening, the plaintiff, returning home from work, started to cross the defendant’s tracks on Smith street at the crossing of Exchange street, approaching from the north. A switch train backed across the highway on the southerly track. He looked both ways before stepping on the crossing, and there was no other train in sight. There was no flagman at the crossing. It was dark.
    He had crossed three or four tracks of the defendant, or more than fifty feet, before his progress was arrested by the switch train. He stood there for a moment waiting for the switch train to move, and was struck by an engine coming from the west, which gave no warning of its approach an d which had no headlight. All the statutory requirements as to the running of trains when approaching crossings were omitted. On the night in question, at the time of the accident, the plaintiff could see one hundred feet in the direction from which the engine came, and in the daytime he could have seen five hundred feet. The plaintiff was seriously and permanently disabled by the accident.
    
      Arthur W. Hickman, forapp’lt; E. C. Sprague, for resp’t.
   Per Curiam.

We are of opinion that contributory negligence could not, as matter of law, be asserted of the plaintiff’s conduct upon the facts disclosed by the evidence. The nonsuit was therefore improper, and the case should have been submitted to the jury.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  