I concur in the reversal of this judgment upon the ground that there is no evidence to justify the finding that the plaintiff was not guilty of contributory negligence. The accident happened between nine and ten o’clock at night on Eleventh avenue, in the city of New York, on April 5, 1895. One witness says that he saw the deceased start to walk across the street whistling; that the first thing he knew there was a crash there, and the man was under the cars. The other witness produced by the plaintiff testified that he saw the deceased just as he started to cross the street; saw him look up and down. Both witnesses testified that they saw the headlight of the engine that struck the deceased when the deceased started to go across, but that it appeared to be standing still; and one of the witnesses adds that when an engine is a block away, going at the speed that tins engine was going, it is impossible to -tell whether the engine is standing still or approaching. These witnesses say that the deceased looked both ways. There is no evidence to show that his eyesight was impaired, or that he was not in possession of his faculties. He must, therefore, have seen this engine at the time the *67witnesses saw it, and it would seem probable that he came to the same conclusion that they did, that it was standing still, and then proceeded to cross the track without waiting to ascertain whether such conclusion was correct or not. The engine was one block away from the deceased when he started to cross the track. It would manifestly take but a short time for the engine to run that distance, and the witness Harrigan testified that at the time the man got to the first rail of the track, that is the east rail of the east track, the train had got there; “ it was a freight train; I could not tell how many cars.” The locomotive, therefore, struck the deceased just as he stepped upon the track. He only looked as he left the curb, and then must have seen the engine, as a bright headlight was burning, and it was plainly visible. He then proceeded to cross the track without looking or stopping to see whether or not the train was standing still, as he must have assumed, and without taking the slightest precaution to protect himself from injury. The engineer of this train would not be expected to anticipate that this plaintiff would have stopped upon the east rail of this track right in front of the approaching car in such a way as to expose himself to being run over. Under these circumstances I can see nothing to show that this engine driver was negligent in not stopping his train as it approached this place. But whatever may be said as to the negligence of the defendant, it seems quite clear that the plaintiff has failed to prove that the deceased was free from contributory negligence. On the contrary, it was proved that he was guilty of such negligence, and that the accident was the direct result thereof. He walked out from the curb, saw a train a block away, and, without waiting to see whether the train was approaching, deliberately stepped upon the track, when he was struck. From this state of facts it is impossible that this accident should have happened, except for the carelessness of the deceased, who deliberately placed himself in front of an approaching engine, without taking the slightest means to ascertain whether the train which he must have seen upon the track was approaching.
I concur with the presiding justice, therefore, that the judgment should be reversed.
Van Brunt, P. J., and Barrett, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.