The plaintiff was, I think, guilty of contributory negligence,, as matter of law, and it was error to submit the question to the jury. The undisputed evidence in the case shows the plaintiff, who was between ten and eleven years of age, to have been sui juris.
The plaintiff and his witness, Daniel Zink, alone testify as to the degree of care exercised by plaintiff in observing the approach of the train that struck him.
The plaintiff, on reaching the first switch track on the south, did stop, and look both ways and observed two engines, coupled together, back to back, approaching on the east-bound main track from the west, and it may be admitted, for the purposes of discussing the present question, that the outlook to the east from that point of view was obstructed to a very considerable extent by cars stored on the side tracks.
The important question- is what plaintiff did in the way of looking toward the east after the two engines had passed and when he had a full opportunity to look from eight hundred to thirteen hundred feet in tliat direction, having crossed the switch tracks and cleared the obstructing cars. The plaintiff’s *369testimony is as follows, viz.“ I allowed these engines to go by, then I walked ahead. I had my dinner in my hands. I got about the second main track before I was struck ; up to it, I guess. I did not see or hear this train coming.”
Zink, plaintiff’s witness, was on the pilot of one of the two engines referred to — the rear one facing the west and backing eastward. He testified on cross-examination, referring to the plaintiff: “ He started to run as soon as we passed by. He kept up his running until he was struck by the other train. "x" * * I didn’t notice him doing anything from the time he started to run until he was struck. * * * The little boy from the time he started to go across these tracks did not stop and turn his head or look either way at all; he looked right straight ahead; that is the way he got run into, just as T have told you here.”
This evidence stands uncontradicted, and I think it discloses a situation where the trial judge was bound to find contributory negligence as matter of law. '
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Parker, Ch. J., Martin and Vann, JJ., concur with O’Brien, J., for affirmance; Gray, J., concurs with Bartlett, J., for reversal; Haight, J., not voting.
Judgment affirmed.