Romeo v. Union Railway Co.

MacLean, J.

Without commenting upon the indications in the plaintiff’s testimony as to his taking care or no care at all to avoid being struck by a car from behind, and as to inferences respecting his care or carelessness in coming into a place of peril (Dooley v. Union Railway Co., 106 App. Div. 397, 399.), it is to be said that the issue of contributory negligence, under the evidence in the case, was erroneously withdrawn or too much withdrawn from the jury by the instruction of the learned justice: “ I am going to charge you here that if he was proceeding down the track and a car was coming behind him it was not his business to look around unless he heard a noise ” and “ Unless his attention is called by a bell or shout or something of that kind to turn around, particularly on a bicycle, his eyes are supposed to be ahead and only ahead; and if the car strikes him behind it is for you to show it is not your negligence in striking him. Maher v. Metropolitan St. R. Co., 102 App. Div. 517, 519. The judgment should be reversed.

Gildersleeve and Amend, JJ., concur.

Judgment reversed and new trial ordered, with costs to ' appellant to abide event.