Opinion
May Term, 1896.
Simon W. Rosendale, for the appellant.
John H. Gleason, for the respondent.
From the plaintiff's testimony it is evident that his injury was, at least in part, the result of his negligence. He was a passenger on one of the defendant's electric cars running from Albany to Troy. The defendant's road has two tracks, the cars for Troy running on the easterly and those for Albany on the westerly track. At Ward's lane, about half a mile from the city of Albany, the car stopped to permit the plaintiff and his companion, Hughes, to alight. The plaintiff alighted from the easterly side of the car, preceded by Hughes, and as soon as he reached the ground the car in which he had been riding started and rapidly proceeded on its way northerly. To reach his residence it was necessary to cross both tracks, with the location of which, and with the running of the cars, he was familiar. After he had crossed the easterly track he came to a space of five feet between that and the westerly track. One of the defendant's cars coming down from Troy on the westerly track was then approaching. It was about ten o'clock at night and dark. This down car was lighted with electric light, had a large headlight, and Hughes says "was one glare of light." While the evidence furnishes very strong grounds for the belief that this car could have been seen before the plaintiff had crossed the easterly track, it is beyond question that from his position between the two tracks it was plainly visible. It is inconceivable that the trolley post, eight inches in diameter, midway between the two tracks, five feet apart, could have obstructed his vision. Instead of remaining between the tracks, or stepping back upon the easterly track until the approaching car had passed, the plaintiff proceeded to cross the westerly track, and, when nearly over, was struck by the car, his companion, who was just ahead, having reached the other side in safety. The law is too well settled to require the citation of any authorities that it is the duty of a person before crossing a traveled railway to look for an approaching train, and a failure to do so, when the view is unobstructed, or crossing with knowledge of an approaching train, precludes a recovery for any injuries sustained. The plaintiff does not swear that he looked for the down car, and the conclusion is irresistible that he either did not look, or that he saw it and miscalculated his chances of crossing in safety. The latter is very probable. Either is fatal to his recovery. There was a rule and custom of the defendant that when a car is standing at a street crossing or station an approaching car must not pass, but come to a full stop, but the plaintiff could not so rely upon this custom as to absolve him from the duty of vigilance. Assuming that there was on this occasion a violation of the rule, which may be gravely doubted, the plaintiff, by the exercise of that care which the law imposed upon him, would have discovered it in time to avert any injurious consequences to himself.
In Dobert v. Troy City Railway Company, recently decided by the General Term in this department, the learned judge who wrote the prevailing opinion says: "The evidence discloses that the intestate on passing around the rear end of the car on which he had been riding, looked in the direction of the approaching car, * * * and which car, as would appear from the evidence, was hidden from the view of the intestate until the very moment of his fatal collision with it." He also says it was "upon a crowded thoroughfare," and it did "not appear that he was familiar with this crossing." In respect to those facts there is between that case and this an obvious and essential distinction.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concurred, except LANDON and HERRICK, JJ., not sitting.
Judgment and order reversed and a new trial granted, costs to abide the event.