
    Florian Rohe et al., Appellants, v. The Third Avenue Railroad Co., Respondent.
    (New York Common Pleas
    Additional General Term,
    January, 1895.)
    One who, after seeing a cable car upon the same block approaching at a rate of ten miles an hour, deliberately drives across the track without looking again, or hurrying his horses, is clearly guilty of contributory negligence.
    Appeal from a judgment of the Eighth Judicial District Court in favor of defendant, rendered by the justice without a jury.
    
      Herbert O. SmtiK for appellants.
    
      John Vernon Bouvier, Jr., for respondent.
   Bookstaveb, J.

Plaintiffs sued to recover damages for an injury to one of their delivery wagons, due to a collision with one of the defendant’s cable cars.

The justice decided that the plaintiffs’ driver was guilty of contributory negligence, and that they, therefore, 'Could not recover. The whole case, in this aspect, rests upon the testimony of the driver of the wagon.

He turned his horses from in front of a store on the easterly side of Third avenue, just north of Twelfth street, and drove directly across the avenue in a westerly direction. Before he “ struck ” the up-town, that is, the easterly track, he saw the car at a stop at Thirteenth street, and when the car started his horses were upon the up-town track. His horses started three or four seconds before the car started.

He further testified that he saw the car coming at the rate of ten miles an hour.

He was asked by the court: “ Q. After you crossed the up-town track did you again look before crossing the downtown track to see how far the car was away from you ? A. Ho, sir.”

The wagon had a covered top and a wire screen extended along each side of the driver’s, seat. After he started across he did not turn to look at the car, but proceeded, walking his horses.

The car on the down-town track struck the right hind wheel of the wagon, knocking it over.

The driver was clearly negligent if, after seeing a car upon the same block approaching at the rate of ten miles an hour, or a much less rate of speed, he deliberately drove across the track without looking or hurrying his horses, and the decision of the justice must, therefore, stand.

Judgment affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  