Hirsch v. New York & Greenwood Lake Railroad , 25 N.Y. St. Rep. 156 ( 1889 )

Dykman, J.

The similitude between this case and the ease of Terry v. Jewett, 78 S". Y. 338, justifies the quotation of that case as an authority against the defendant on this appeal. In both cases the injured person undertook to cross a track between the station-house and thfc train he desired to enter, and in both cases the injury resulted from the propulsion of a train between the passenger train and the station upon the intervening track, occupying the space over which the passenger was required to pass. In the ease cited the court held the act of the engineer to be grossly negligent, and that it was not negligent as a matter of law for the injured person to attempt to cross the track without looking, but that the question of contributive negligence was one of fact for the jury. Here the engineer of the incoming train, which injured the plaintiff, ran his engine between the passenger train and the waiting-room at a time when passengers might desire to pass from the platform to the train, and when they had a right to believe they might do so witii safety, and, under the doctrine inculcated by the Terry Case, that was an act of gross negligence. We think the ease was properly submitted to the jury, and that the appeal is without merit. The j udgment and order denying the motion for a new trial should be affirmed, with costs.