The decision of the learned court nonsuiting the plaintiff is sustained by authority. The Supreme Court of Pennsylvania, in a similar case, authorized a recovery by a child of six or seven years of age, and Woodward, J., adds : “If the plaintiff had been an adult of ordinary prudence and discretion he would have had no *194right of action, for however blameworthy the defendants may have been in leaving their cars on the crossing, common prudence would have restrained him from passing under them, and an adult would have been bound to use common prudence.” (Rauch v. Lloyd, 31 Penn. [7 Casey[, 358, 370.) Under quite similar circumstances the Court of Appeals of Maryland, by PobiNSON, J., says : “Was the attempt by plaintiff to get on the platform, of the car, under the circumstances, such a glaring act of carelessness as to amount in law to contributory negligence ? To this we think there can be but one answer. On reaching the crossing at Camden and Howard streets, instead of waiting until the train had moved or walking up to Pratt street, the distance of a square only, where he could have crossed without risk, he attempted, although it was dark, to get on the platform of one of the cars, at a time, too, when defendant was making up its train, and without even looking or inquiring whether an engine was attached thereto. For such negligence it is no excuse to say that he had seen five' or six of the crowd collected there make a like attempt without injury. * * * Tested by this standard (the ordinary care which the law requires) “ the conduct of the plaintiff, in thus exposing himself to a danger so threatening, can be viewed in no other light than as an act of carelessness, amounting in law to con-tributary negligence.” (Lewis v. Balt. and Ohio R. R., 38 Md., 566; S. C., 10 Amer. Rail. Cases, 521, 528.) Van Schaick v. Hudson Riv. R. R. Co. (43 N. Y., 528), is analogous, and in our judgment sustains the same view of the law. The plaintiff, in the case under consideration, could have gone around the end of this obstructing train with safety, a distance of 100 to 200 feet. But he preferred to climb across defendant’s cars, knowing it was a train liable to be moved; that the engine was near the depot, but not in sight, and that cars were frequently in motion at that iDoint. Under such a state of facts the plaintiff was very negligent in taking the risk, and as his injury was caused thereby he cannot recover.
The counsel for the plaintiff insists that the question of contributory negligence should have been left to the jury. In Reynolds v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 248), contributory negligence was presumed as a matter of law in the absence of *195any evidence of the conduct of plaintiff’s intestate, and it was held plaintiff should have been nonsuited. In the present case there is no conflict of evidence ; no doubt about the facts. The injury could not have occurred except for plaintiff’s act in undertaking to climb over a train between the cars. It was for the court to determine whether that was negligence which contributed to the injury, and, as other courts have said, no one could doubt it was. The rule is correctly stated in Massoth v. Del. and Hud. Can. Co. (64 N. Y., 529); S. C. (6 Hun, 314).
Nor is it of importance that defendant was guilty of wrong or negligence in blocking up the way, or in starting its train suddenly and without notice. The defendant is not liable for the injury sustained by plaintiff, unless it occurred solely by its fault and negligence, and not in any degree through the fault or negligence of the plaintiff
So, in any view which can be taken of the case, it would seem a nonsuit was properly granted. The motion for a new trial is, therefore, denied, and judgment ordered for the defendant on the nonsuit, with costs. .
Learned, P. J., concurred ; Bocees, J., not acting.Motion for new trial denied, and judgment for defendant on verdict.