26 N.Y.S. 218 | N.Y. Sup. Ct. | 1893
State street in the city of Schenectady is intersected at right angles by the railway tracks of the defendant. At. the point of intersection State street runs substantially east and west, and the defendant’s tracks north and south. There are four-tracks, numbered from the west towards the east,—Nos. 1, 2, 3, and 4. At the southwesterly corner of the railroad crossing and State-street, and between track No. 1 and a building standing on the corner of State street, and known in this case as the “Express-Office,” there is a short spur track running beside the building: south from State street. On the night of the accident hereafter referred to there was a car standing on this spur track. The-defendant was accustomed to keep a flagman at this State street crossing. On the evening of November 1,1891, and about 11 o’clock in the evening, the plaintiff, who is a man about 60 years of age,, and somewhat deaf in one ear, was on the south side of State street, going east towards the railway crossing. When he had arrived at the express office he testifies that he looked both ways,— northerly towards the depot, which is on the north side of State-street; and southerly in the direction of Albany. It was a dark night, and somewhat rainy. He states that he neither saw nor-heard any approaching train, and that he did not see any flagman, there, nor any man with a lantern; that he saw no light except one, and that was a low switch light, back of a shanty on the railroad tracks, below State street, in the direction of Albany; that" he proceeded on across the tracks, crossing track No.'l, and was just on or across track No. 2, when he was struck by the bumper of* the engine attached to the train coming from Albany on track No-
The only question necessary to be discussed is that of contributory negligence. To maintain his action it is necessary for the plaintiff to establish the lack of contributory negligence on his part. The burden of proof is upon him, and he is not entitled to the benefit of any presumption to establish lack of negligence on