William Robinson, Appellant, v. Union Railway Company of New York City, Respondent

William Robinson, Appellant, v. Union Railway Company of New York City, Respondent. Second Department, October 18, 1907. Railroad—injury while crossing street — nonsuit. Where it is shown that- the plaintiff, who was crossing-in the middle of a block: and was injured by a surface car, -saw the car approaching at a medium speed - from sixty to eighty-feet away as. lie was about to step upon the track; that his view was unobstructed and he did not look again until he was in the middle of the said track, when the car wks so close .that lie jumped back and was hit, a nonsuit is proper. . The fact that the headlight went out and was relighted during, the period is immaterial when it is shown that the plaintiff saw the car before stepping upon the track. . ■ - ' Appeal by the plaintiff, William Bobinson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 14th day of February, 1907, upon the dismissal of the complaint by direction of the court :at the close of--the plaintiff’s case on. a trial at the Queens County Trial Term. - Archibald Foote Clark, for the appellant. Bayard H. Ames [James L. Quackenbush with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The best phase of the testimony of the plaintiff and. liis witnesses is that he was walking across 3rd avenue in Bronx borough ■ near 180th street in the' middle of- the. Block after lark; that as he was about to step ón the uptown .track (the first-he -reached)"he looked south and saw a car approaching at á medium rate of speed 60, 75, or 80 feet away; that as he got to the middle of this track he looked again and the car was so close that he jumped back hut was -hit before he could -get off the track -and lost a' leg. There was no other vehicle in the vicinity, and nothing to prevent the plaintiff from seeing the-car all the time. Having seen the car that distance away as he was stepping on the track, it was impossible for him to be struck by the car by the time he got to the •middle of the track unless he negligently, remained in the way.•One witness says the head light went out as the car was going the said distance and then lighted up again ; but if this he believed it makes no difference for the plaintiff says he saw the car. The judgment should be affirmed. Present — Hirschberg, P. J., Woodward, Gaynor and Miller, JJ. Judgment unanimously affirmed on reargument, with costs.-