Majority
p. 304(84 Hun, 307.) JAGER v. CONEY ISLAND & B. R. CO. (Supreme Court, General Term, Second Department February 11, 1895.) Argued before DYKMAN, PBATT, and CULLEN, JJ.
Headnote
Street Railroads—Injury to Person on Track.A person who, while walking along a street-car track, sees a car' approaching, but does not get out of the way, though he had ample time to do so, is guilty of contributory negligence.
Appeal from circuit court, Kings county.
Action by John Jager against the Coney Island & Brooklyn Bail-road Company for personal injuries. The complaint was dismissed,
and plaintiff appeals.
Affirmed.
Jacobs & Butcher, for appellant.
H. W. Slocum, for respondent.
This is an appeal from a judgment entered at circuit in a negligence case. The plaintiff was injured on defendant’s railroad track, about 150 feet south of what is called “Manhattan Crossing,” by a car going from Brooklyn to Coney Island. The negligence, it was claimed, which caused the injury, consisted (1) in a high rate of speed on a public highway; (2) the absence of signals; and (3)
p. 305
the absence of the motorman from his post of duty. There was no difficulty in seeing both ways upon the track, a long distance. In fact, the plaintiff did see the car approaching, for a long distance, and in ample time to get out of the way of it; and, if he had stood still where he was when he saw the car coming, he would not have been injured, but he says when the car got near him he jumped in front of the car. This testimony precluded any inference of negligence in not stopping the car, or in the motorman not being at his post. In fact, the proof was that the motorman was at his post all the time, and a second or two before the accident he had turned on the power, to increase the speed. The plaintiff was traveling in a direction to meet the car, and had seen it in. plain view, coming towards him, for a long distance. Indeed, he saw it so far ahead of him that he took it for a man with a lantern, which does away with all necessity for signals, were the same required. The criticism that the motorman was seen, before the accident, leaning with his back against the door, is not only puerile, but it is false, if it refers to the moment before the accident. It is apparent from the facts in evidence, putting the most favorable construction on them for the plaintiff, that no negligence whatever was shown on the part of the defendant, but that the sole cause of the accident was want of care on the part of the plaintiff. Judgment affirmed, with costs. All concur.