Opinion
March 21, 1949.
Action to recover damages for personal injuries sustained while plaintiff was standing on a platform of defendant's subway railroad, vomiting, with his head beyond the edge of the platform. Defendant appeals from a judgment for plaintiff. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. The plaintiff was guilty of contributory negligence as a matter of law. He voluntarily placed his head in a position of danger and kept it there, without paying attention to the tunnel from which he knew a train would come towards his head. He had control of his head and feet, even though his hearing was affected by the sounds of vomiting. For him a "proper viewpoint" was not one of place alone but also of time. Every second he remained, the likelihood of a train arriving increased. He was not a traveler crossing a railroad track who could rely on a look at a proper viewpoint before crossing. He was heedless of ordinary precautions in a place of known danger. ( Schrader v. New York, Chicago St. Louis R.R. Co., 254 N.Y. 148, 151.) He invited the result. ( Zurich Gen. Accident Liability Ins. Co. v. Childs Co., 253 N.Y. 324, 327.) Therefore, although the jury could say the motorman was negligent, plaintiff cannot recover because his own negligence continued along with that of the motorman and contributed to his injuries. ( Hernandez v. Brooklyn Queens Tr. Corp., 284 N.Y. 535; Panarese v. Union Ry. Co., 261 N.Y. 233. ) Wenzel and MacCrate, JJ., concur; Sneed, J., concurs in result; Nolan, P.J., and Carswell, J., dissent and vote to affirm. [See post, p. 782.]