
    Mack Hanson, Appellant, v. John W. Whalen and Others, Respondents.
    Third Department,
    January 8, 1906.
    Negligence—injury to motorman by collision with steam roller — contributory negligence.
    The plaintiff, a motorman driving an electric car, collided with a steam roller - operated by the defendants macadamizing a highway, which roller, in crushing stone at the intersection of the highway with the tracks, had passed over a rail so that it was impossible to back it off. The plaintiff was driving at forty-five miles per hour and had a view of the roller from .1,000 to 1,500 feet from the crossing, although he claimed that he could not tell whether it was on- the track or not until he was within 500 feet of the crossing. The rules required that he keep his car under control whenever vehicles were ahead. By an average speed of twenty-two miles per hour he could have filled his schedule time. He knew that the highway Was under repairs at said point.
    
      Held, that lie was guilty of cotitribtitory negligence which barred á recovery.
    
      Appeal by the plaintiff, Mack Hánsón, from a judgment of the ' Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Fulton on the 16th day óf, June, 1905, upon the dismissal of the complaint by. direction of the court after a trial at the Fulton Trial Term. . ,
    
      Andrew J. Nellis and Majendie Johnston, for the appellant.
    
      Thomas F GonwaAj, for- the respondents.
   Chase, J.:

The defendants are copartners, and on the 16th day of September, 1904, and for-several mon.ths'prior thereto were engaged in improving a highway at,and near the, village of CranesVil'le, Montgomery county, under the direction of an employee of the State Engineer.

' The defendants were macadamizing the highway and crushed stone was placed thereon and rolled with a steam roller, weighing over twelve tons. .They had worked toward and about a crossing of said highway at grade by the Fonda, Johnstown and Gloversv-ille. Railroad Company and on said day the filling of crushed stone extended to the tracks of said railroad at the crossing ón.either side, ' and it was necessaiy for the defendants in rolling said stone to pro-, pel the steam- roller at least- partly across the first track. It is cjaimed'that the railroad company a short time prior to September-16, 1.904, liad raised its tracks, and in doing -so had left the plank.ing between the tracks-at the crossing two or more inches lower than, the top of the rails. The crossing was not at right angles, On September 16,. 1904, in rolling said crushed stone -adjoining the tracks for the first time from that side, tl\e front wheel of • the roller went over the first rail and.when the man in charge of'the roller tried to back it from the track the wheel .slid along the inside of the rail instead, of passing Over it, and the man in charge thereof was’ temporarily unable to back the roller off the track. A. car on said railroad approached at the rate of forty-five miles an hour ánd struck the- roller, throwing it about fifty feet. ...The vestibtile of the car was smashed-and the car was derailed and struck and cut off. an ordinary .telephone pole.. The motorman-on said car was injured, and this action is brought against the defendants to recover damages sustained by him, claiming that his in juries resnltéd from the defendants negligently obstructing the said track. The car was known as a “limited” car running with only two stops between Schenectady and Amsterdam. The running time between the said places, a distance of between sixteen and seventeen miles, was forty-five minutes, being an average speed of about twenty-two miles an hour. The car approached the crossing from the east, and on a down grade. The rules of said railroad company provide that a motorman shall not "allow the current to remain on when the car is going down"grade and schedule time can be made without using the current. They also provide that a motorman shall exercise constant care to prevent injury to persons and property, and that in all cases óf doubt he must take the safe side. They also provide that whenever persons or vehicles ahead of the car are in a dangerous position, a motorman must not rely upon them to get awáy safely, but he must get liis car under full control -or stop at once; and they further provide that motormen must take every precaution for the protection of their cars even where it is not provided for by the rules, and that in all cases of doubt and uncertainty they must take the safe course ■ and run no risk. The roller, or a wagon, on or near said crossing could be seen by a motorman on the car as he approached the crossing from 1,000 to 1,500 feet therefrom, although until Ire reached a point about one. rail’s length east of a whistling post 500 feet east of the crossing, it is claimed by the plaintiff that it was impossible to tell whether such vehicle was on the track or close to the track. The defendants employed about fifty men, ten teams and the roller in the work on said highway. The plaintiff had seen the defendants and their employees at work on the highvvay for months and knew when he approached the crossing that they were then working in the immediate vicinity of the crossing and that it was necessary to run the roller on the tracks to do the work. When he was a sufficient distance from the crossing to have stopped the car before reaching it, he saw that the roller was at the crossing but could not tell with certainty whether it was on the crossing or only very near it. Instead of turning off the. power and cheeking the speed of his car to such an extent that he could have stopped it after ascertaining the exact position of the roller he ran with full power and speed until within fifty or seventy-five feet of said whistling post and then reversed his power, and applied the emergency brakes, but the car was going at such speed that, it was impossible for him to stop in time to avoid the accident. He says that it was necessary for him to propel his car at forty-five miles per hour to make his time between Schenectady and Amsterdam. It does not appear that he was directed by the company or that it was necessary to run at any particular speed at any particular place. His only duty so far as appears from the record was to make the time, between the two places as stated. -. He admits that he was required by the company when crossings could not be seen to slow down for the reason that if he did not slow down he could not see a crossing in time -to stop if necessary before reaching it". The samé reason exists where the view of a crossing is not such as to enable, a motorman to determine with certainty whether it is necessary to stop before reaching it. • The plaintiff further-says that if he had slowed to twelve or fifteen miles an hour he could have stopped his car in two or three hundred feet. It would appear, therefore, that it would not have been necessary for him to have slowed his car very much to have "stopped after he reached the point about five hundred and seventy-five feet from the crossing where he .could see that there was. an obstruction on the track. He should have had his car sufficiently under his control so that he could have stopped it when he found that it was necessary to do so. He insists that he kept his eyes on the crossing from the time when he first came in view thereof, but his watching the crossing was not .of the slightest value because when he was first able to ascertain with certainty that the roller was on the crossing it was too late for him at the speed at ■ which he was running to stop his" cat in time to prevent a collision.So far as appears from the results his conduct would have been no less prudent and cautious if he had run ^lie-car in the same manner with his eyes closed until he was within five hundred and seventy-five feet of the whistling post. " '

It does not seem necessary to discuss the very interesting and important question of the relative rights of electric cars and travelers on a highway at-country highway grade"crossings for the reason--that we are of- the opinion that upon the facts of this case the plain-. tiff by running his car with full power.on the down grade when he •knew that a steam roller was either on or very close to the track-until he had reached-a "point where it was- impossible for, him to. stop in time to avoid the possible danger was guilty of contributory negligence..

He wholly failed to take any precaution whatever to check or control his car when it was.his duty to have done so.

■ The trial court dismissed the complaint on the ground that the plaintiff was negligent and that his negligence had contributed to his injuries and we think the judgment should be- affirmed, with costs.

Judgment unanimously affirmed, with costs; Kellogg,' J.,' not sitting;  