Majority
p. 818Alexander Myers, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t. (Supreme Court, General Term, Fourth Department, Filed July 5, 1895.)
Headnote
NEUMaENCE — Contributory.A person who is injured in attempting to board a train while it is moving at the rate of two miles an hour, even though the conductor told him to jump on, is guilty of contributory negligence.
Appeal from a judgment, entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes.
D. P. Morehouse, for app'lt; D. G. Griffin, for resp’t.
— When this case was before us on a former appeal ( 82 Hun, 36 ; 63 St. Rep. 475 ), the judgment, upon a verdict in favor of plaintiff, was reversed, on the ground that the plaintiff was guilty of contributory negligence, and a nonsuit should have been granted on that ground. Upon the retrial now under review, a nonsuit was granted, it being said by the trial justice that in his opinion the facts were not in any material respect changed from what they were upon the former trial. We are of the opinion that the nonsuit was properly granted. The
p. 819
changes, if any, in the evidence, related to the proof on the question of whether the conductor of the train told the plaintiff to jump on. Assuming the conductor did so tell the plaintiff, the principle of Hunter v. Cooperstown, etc., R. R. Co., 126 N. Y. 18 ; 46 St. Rep. 367 , would, we think, be applicable, and call for a nonsuit. The train here, 'according to the evidence on the part of the plaintiff, was going at about the rate of two miles an hour. In the Hunter Case the rate was from one to two miles an hour. In the Hunter Cuse the danger was apparent, and so it was here. We think the judgment should be affirmed.
Judgment affirmed, with costs.