
    ANTONI DWOJAKOWSKI v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY.
    Argued February 25, 1903
    Decided June 12, 1903.
    In an action brought by plaintiff for damages sustained by being struck by an engine while crossing the tracks of á railroad company, and it appearing from the evidence- that plaintiff was injured by stepping in front of an engine' which was running backward and drawing a caboose after it—Held (1), that.if plaintiff failed to see .this engine approaching, it was because he failed to look before stepping upon the track, and such failure' was clearly negligence on his part; (2) if'he did see it, and took the risk of attempting to cross in front of it, .he has no one else but himself to blame for' the injury which resulted.
    On rule to show cause.
    Before Gummere, Chief Justice, and Justices Fort, Hendrickson and Pitney.
    For the plaintiff, Cowles & Carey.
    
    For the defendant, George Holmes and William D. Edwards.
    
   Per Curiam.

The plaintiff, desiring to take. a train of the defendant company, at its station at Greenville, for the purpose of going to Plainfield, approached the station on the side of the eastbound track. There was an overhead passageway provided for passengers desiring to cross over the tracks for the purpose of taking westbound trains. This, the plaintiff says, he failed to observe. The eastbound and westbound tracks were separated by a fence, in one portion of which there was a gate, put there for the purpose of transporting baggage from one side of the road to the other. The plaintiff’s story is that this gate was open, and that, supposing it was for the purpose of enabling passengers to pass through from one side of the tracks to the other, he attempted to cross by that way. He says that before crossing he looked to see if the road was clear, and, observing that a freight train was approaching, with several cars attached to it, he waited until it had passed, and then, seeing nothing else which threatened danger, stepped upon the track, and was immediately struck down by a caboose, which was running wild, and following the freight train. He excuses himself from having failed to observe the approach oh the caboose by sayng that his vision was obscured by the presence of a heavy fog, and by the smoke thrown out by the engine which had just passed him.

It is claimed on the part of the defendant company that, on the plaintiff’s own story, he should have been nonsuited, because it affirmatively appears that he was negligent in failing to' observe the approach of this caboose. Whether, under the peculiar circumstances detailed by the plaintiff, he can be said to have been negligent, we do not find it necessary to determine; for, on the whole case, it has been clearly shown that the plaintiff was not struck down- by a caboose running wild, and following closely behind a freight train which had passed him; that, in fact, no freight train at all passed Greenville station at or about the time of the accident, and that he was injured by stepping in front of an engine which was running backward and drawing a caboose after it.' If he-failed to see this engine approaching, it was because he failed to 'look before stepping upon the. track, and -such failure was clearly negligence on his part. If- he did see it, and took the risk of attempting to cross in front of it, he has no one but himself to blame for the injury which resulted.

The rule to show cause should be made absolute.  