Majority
p. 712Harshaw Scott, Resp’t, v. The Pennsylvania Railroad Co., App’lt.[1] (Court of Appeals, Second, Division, Filed December 23, 1891.)
Headnote
Negligence—Contrebutoxy.Plaintiff, half an hour before sunrise and on a foggy morning, wearing a heavy ulster with the collar turned up about his neck and ears, looked both ways jtist before he stepped upon the first of plaintiff’s tracks, and then looked no more towards the west, from which direction he knew the express train was then about due and would pass without stopping. He walked east between the second and third tracks so near that the train coming behind struck him. Held., that he was guilty of inexcusable negligence.
Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.
Osborn E. Bright, for app’lt; Austen G. Fox, for resp’t
We think this judgment must be reversed upon the ground that the plaintiff’s negligence contributed to his injury.
Plaintiff’s own testimony, and there is no other in his favor in this respect, is that he looked both ways just before he stepped upon the first track, and looked no more towards the west, from which direction he knew the express train was then about due and would pass without stopping upon the third track. He turned his foot-steps toward the east and proceeded diagonally with respect to the tracks, with his back toward the west, crossed the first and second tracks, walked between the second and third
p. 713
tracks, not upon the third track, but so near it that the train coming up from behind him struck him and threw him upon the pilot of the locomotive. He had on a heavy ulster overcoat with the collar turned up about bis neck and ears. It is true that it was about half an hour before sunrise and a foggy morning. But the air was still and the rumble of the coming train was distinctly heard by others. Irrespective of the question of defendant’s negligence, we think the plaintiff was negligent in that he omitted to keep his eyes and ears properly alert, regard being had to the dangers of the situation known.to him. If he had again looked toward the west before he came so near the third track as to be within the stroke of a train passing upon it he probably would have seen the train in time to avoid it To enter this known place of danger and to continue to walk in it without again looking to see or listening to hear whether any train was approaching from behind him, seems to us, under the circumstances, to be inexcusable
Judgment reversed and a new trial granted, with costs to abide event
All concur, except Follett, Ch. J., not sitting.