
    Jane Cassidy, as Administratrix of the Estate of Patrick J. Cassidy, Deceased, Appellant, v. Fonda, Johnstown and Gloversville Railroad Company, Respondent.
    
      Negligence — railroads — automobile truck struck by railway car at crossing — when driver of truck guilty of contributory negligence as matter of law.
    
    
      Cassidy v. Fonda, Johnstown & Gloversville R. R. Co., 202 App. Div. 768, affirmed.
    (Argued October 27, 1922;
    decided November 21, 1922.)
    Appeal from a judgment, entered June 7, 1922, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that defendant operated an electric railway from Amsterdam to Fonda; that at Fort Johnson on April 1, 1921, plaintiff’s intestate was lawfully driving an automobile truck northerly over a public crossing on e defendant’s line between its Fort Johnson station and an overhead crossing from a place where merchants have been accustomed to unload their freight from the New York Central tracks; that by reason of defendant’s negligence the truck which plaintiff’s intestate was driving was struck by defendant’s east-bound trolley car which was running at an excessive rate of speed without giving any warning of its approach, inflicting injuries upon plaintiff’s intestate from which he died. The Appellate Division held that the evidence showed that if intestate had looked he could have seen the approaching car and that if he looked and failed to see the car he did not look attentively and was negligent. If he did. look and, seeing the car, proceeded 'on his journey to beat the car to the crossing he was equally negligent:
    
      James A. Leary for appellant.
    
      Charles S. Nisbet for respondent.
   Judgment affirmed, with costs, on opinion of Kellogg, J., below.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  