From that part of the opinion which holds that the plaintiff was not guilty of contributory negligence as a matter of law I am compelled to dissent. *Page 266
Inadvertently, the writer expressing the majority view does not state the facts as favorably to the railroad as I take them from the testimony of the plaintiff, himself. Plaintiff was talking to a friend and as the train approached he started for the crossing. He first started walking fast over the crossing carrying his mail bag and as he reached the westbound tracks he started trotting, and while still in a place of safety between the west and east bound tracks, he broke into a run to beat the train, which he testified was approaching between 40 and 50 miles per hour. Plaintiff's exact words on direct examination are: "I looked at the train, it was coming faster than I anticipated it was coming, I started running and fell just before I crossed the last rail, my foot hung in the track and I fell down. * * *"
"Q. For what period of time, you know how long you laid there struggling to get loose? A. I suppose three seconds or maybe four."
The majority opinion says plaintiff's "negligence in undertaking to beat the train across had ceased or been exhausted, or practically so, when the supervening negligence of the defendant in permitting the trap-like hole to remain in the sidewalk operated to throw him down and inextricably hold him as in a steel trap." With that statement I cannot agree. No prudent man handicapped with a mail bag over his shoulder would have attempted to run across the tracks in front of a train he knew was approaching at a speed between 40 and 50 miles per hour and near enough to run over him within three or four seconds if he fell.
His negligence in running in front of the train did not exhaust itself within a space of "three seconds or maybe four." This holding was but momentary and if the train had not been right upon him plaintiff could have extricated his foot immediately upon regaining his footing. In the circumstances in which his wanton disregard for his own safety had placed him any misstep on his part would have produced the disastrous result he suffered on this occasion. If plaintiff had not created the emergency by his heedlessness, he could have arisen and removed his foot within the space of a minute. But the prone position he was in made it next to impossible for him to extricate his foot and he could not afford to run the risk of arising to do this as the train was right on him. *Page 267
Had the train been far enough away to have permitted plaintiff to cross the tracks in safety without running, as it was in the Samkiwicz case, 82 N.J.L. 478, 81 A. 833, 39 L.R.A., N.S., 571, Ann. Cas. 1913C, 1363, and had his foot been held a sufficient time to convert what appeared to be a reasonably safe crossing into a disastrous one, I would say his negligence in crossing in front of a fast approaching train had exhausted itself. But the law will not permit one to take chances in running in front of a train he knows is making 40 or 50 miles an hour when his margin of safety is reduced to three or four seconds and then recover against the railroad company when that slight margin is consumed by the company's negligence. The quotations in the majority opinion from the Samkiwicz case, supra, the Bunton case, 100 Kan. 165,163 P. 801, and the Landers case, 244 F. 72, 73, all support this proposition and convince me that the plaintiff was guilty of contributory negligence as a matter of law.
Judge Thomas concurs in this dissent.