Zobel v. City of New York , 275 A.D.2d 782 ( 1949 )

The plaintiff was guilty of contributory negligence as a matter of law. He voluntarily placed his head in a position of danger and kept it there, without paying attention to the tunnel from which he knew a train would come towards his head. He had control of his head and feet, even though his hearing was affected by the sounds of vomiting. For him a “ proper viewpoint ” was not one of place alone but also of time. Every second he remained, the likelihood of a train arriving increased. He was not a traveler crossing a railroad track who could rely on a look at a proper viewpoint before crossing. He was heedless of ordinary precautions in a place of known danger. (Schrader v. New York, Chicago & St. Louis R. R. Co., 254 N. Y. 148, 151.) He invited the result. (Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324, 327.) Therefore, although the jury could say the motorman was negligent, plaintiff cannot recover because, in our opinion, his own negligence continued along with that of the motorman and contributed to his injuries, as a matter of law. (Hernandez v. Brooklyn & Queens Tr. Corp., 284 N. Y. 535; Panarese v. Union Ry. Co., 261 N. Y. 233.) Wenzel and MaeCrate, JJ., concur; Sneed, J., concurs in result; Nolan, P. J., and Carswell, J., dissent and vote to affirm.