Opinion
April 18, 1949.
Present — Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ.
The motion is referred to the court that rendered the decision.
Motion for reargument or to resettle order denied, without costs. On the court's own motion the decision herein handed down on March 21, 1949 ( ante, p. 722), is amended to read as follows: Action to recover damages for personal injuries sustained while plaintiff was standing on a platform of defendant's subway railroad, vomiting, with his head beyond the edge of the platform. Defendant appeals from a judgment for plaintiff. Judgment reversed on the law, with costs, and the complaint dismissed on the law, with costs. The findings of fact implicit in the verdict of the jury are affirmed. 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 MacCrate, JJ., concur; Sneed, J., concurs in result; Nolan, P.J., and Carswell, J., dissent and vote to affirm.