Majority
p. 619Alexander Myers, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
Headnote
Judgment and order affirmed, with costs.—When this case was before us on a former appeal ( 82 Hun, 36 ) the judgment upon a verdict in favor of plaintiff was; reversed on the ground that the plaintiff was guilty of contributory negligence and a non-suit should have been granted on that
p. 620
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 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 the Hunter Case ( 126 N. Y. 18 ) 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 case the danger was apparent, and so it was here. We think the judgment should be affirmed.
Present— Hardin, P. J., Martin and Merwin, JJ.