This action was brought to recover damages for personal injuries based upon the alleged negligence of the defendant; There is little dispute as to the facts. The plaintiff is a bricklayer, and at the time he was injured was in the employ of the H. B. Camp Company, which company was engaged in laying terra cotta ducts or conduit pipes for electric wires along the line of defendant’s railway on Broadway, in the city of New York. The pipes were being laid in a trench which was about four feet deep and extended partially under the defendant’s "tracks. The plaintiff, with several other bricklayers, was at the time at work in this trench. He was familiar with the work. He had previously been engaged in the same city in similar work, and he knew that the cars were frequently passing and repassing over the tracks while he was prosecuting his work. He describes the way in which he was injured as follows: “ The first intimation I had of being in any danger, or of anything happening, was of a shadow. I didn’t know exactly what the shadow was, but I know it was a rather long shadow, and instinctively, to save myself, * * * I threw my hands forward to get out of the way of the car. My left hand was crushed. Between the time when I was conscious of the shadow over me and the time when my hand was cut and crushed, an infinitely small time elapsed. ■* * Immediately after the accident occurred I knew what had cast the shadow and crushed my hand, because 1 looked after the car. I didn’t lose consciousness. I looked after the car and saw what kind of a car it was. It was an open car. * * * I threw myself away from the track and threw out my hands. I threw myself away from the track. I am not positive in which direction I threw my hands; towards the track it must have been, because I faced the track, and to save myself pushed myself away.” What actually occurred was that the plaintiff, while the car was passing over him, put one of his hands upon one of the rails of the track, and a portion of the car passed over it and he sustained a serious injury. This, however, did not render the defendant liablé. The plaintiff was in a place of safety when the car commenced to pass over him, and had he remained in the same position he would not have been injured at all. He was familiar with the character of the work and of the risks and dangers incident to it. He had been *186engaged in the same kind, of work before and had observed the passing and repassing of cars on the very day when he was injured and while at work in this very same trench. And if he had not it must have been obvious to him that if he placed his hand upon the rail while a car was passing he would sustain injuries. The rule is well settled that one who, knowing and appreciating a danger, voluntarily assumes the risk of it, has not, if injured, a just ground of complaint. (Knisley v. Pratt, 148 N. Y. 372, and cases cited; Miller v. Grieme, 53 App. Div. 276.)
But it is said that the defendant was negligent, inasmuch as the car was moving at an improper rate of speed. As to this, there does not seem to be any evidence in the case that it was moving at an improper rate of speed ; on the contrary, the uncontradicted evidence is that it was moving at a low rate of speed, or at about half speed, and it is difficult to see how the speed of the car had anything whatever to do with the accident. The car, as has already been said, had partially passed over the plaintiff before he put up his hand, and if it had been running at a lower rate of speed he would have been injured just the same if he kept his hand upon the rail. What caused his injury was not the speed of the car, but his placing his hand upon the rail while it was passing over that particular place. It is also urged that the defendant was negligent in that it did not notify the plaintiff of the approach of the car, that is, that the gong was not sounded immediately prior to and as the car was passing over the trench. A careful consideration of this record satisfies us that such is not the fact. It is true that several of the persons engaged at work with the plaintiff in the trench testified that they did not hear the gong sound, and the plaintiff testified that “ no bell was rung before the car came up to me,” but these persons- were actively engaged in laying brick ; their minds were upon that work; they were not listening to ascertain whether the bells upon cars which were frequently passing And repassing were rung or not. It is neither reasonable nor probable that they could tell that fact with any degree of accuracy. But in addition to this, the sworn statement of the motorman of the car, introduced in evidence by the plaintiff himself, is to the effect that the bell was rung, and his statement must, under the circumstances^ be held to outweigh that of the plaintiff and his witnesses. And in *187addition to this the defendant produced four witnesses— the motorman, the conductor and two others, one of whom was a passenger on the -car — all of whom testified substantially to the effect that the gong was being sounded when the car was passing over the trench. Therefore, the negative testimony of the plaintiff’s witnesses that they did not hear the gong sound, including that of the plaintiff himself, considering the position in which they were placed and the work in which they were engaged, wras not sufficient to carry the case to the jury, as against the positive testimony of the defendant’s witnesses who heard the gong sounded, and the statement of the motorman, put in evidence by the plaintiff. (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.) In the case just cited the Court of Appeals said: “ As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it, that their attention was directed to the fact, so that the evidence will tend, to some extent, to prove the negative.” Neither the plaintiff nor any of his witnesses were watching for this car or listening to determine whether a bell was sounded or not. The truth is the plaintiff was injured by reason of his own inadvertence and carelessness and there is no legal or just ground upon which to hold the defendant responsible.
The judgment, therefore, must be affirmed, with costs.
Yan Brunt, P. J., and Ingraham, J., concurred; O’Brien and Hatch, J J., dissented.