
    Tully M. Robison, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Third Department,
    November 11, 1908.
    Railroad — contributory negligence— collision at grade crossing.
    The plaintiff was struck by the defendant’s locomotive while driving over its tracks at a grade crossing. Nine tracks crossed the highway at the place of the accident and on the fourth track was a row of. box cars which partially obstructed the plaintiff’s view. On approaching the crossing the plaintiff looked and listened and while passing the box cars his horses shied and when on the sixth track became unmanageable so that he was unable to stop them before the collision which occurred on the eighth track. It further appeared that the flagman ordinarily on duty to the knowledge of the plaintiff was absent. On all the evidence, held, that the question of contributory negligencé was for the jury and that a nonsuit was error.
    
      Appeal by the plaintiff, Tully M. Robison, from a judgment .of the Supreme Court in favor of the defendant, entered in .the office of the clerk of the county of Schenectady on the 4th day of February, 1908, upon a nonsuit directed by the court after a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the 4th day of February, 1908, granting the defendant’s motion for a nonsuit.
    
      W. W. Wemple, for the appellant.
    
      Angle & Strong [Homer Strong of counsel], for the respondent.
   Cochrane, J.:

As plaintiff was crossing defendant’s tracks with a sleigh and team of horses owned and driven by himself an engine of the defendant collided with the sleigh and injured plaintiff. He was traveling on a public highway which crossed the railroad at grade. There is evidence that no signal was given of the. approach of. the engine. The negligence of defendant was clearly established.

Plaintiff was nonsuited because of contributory negligence on his part. Hine tracks of the defendant crossed the highway at the place of the accident. The collision occurred on the eighth track from where plaintiff approached the crossing. On the fourth track was a row of box cars, one of which projected for half of its length across the highway. Between the fourth and fifth tracks was a distance of about twenty-five feet. The box cars obstructed plaintiff’s view of the approaching engine, until he crossed the track on which they were standing. According to his testimony he approached the crossing looking and listening; his horses were trotting at the rate of about ten miles an hour; they shied around the projecting box car ;■ the road was slippery and the horses smooth shod he guided them back into the highway; when on the sixth track he saw for the first time the engine approaching; his horses then became uncontrollable, and although assisted by his son, who was riding with him, he was unable to stop them before the collision occurred. It was also established that a.flagman, ordinarily on duty at this crossing, was'absent, and plaintiff testifies that he looked for him and observed his absence before crossing any of the tracks.

It is doubtless true that under ordinary circumstances it would have been the duty of the plaintiff after passing the obstructing box cars to look for approaching trains, and to have stopped before reaching the sixth track, where he says he was when he first saw the approaching engine, and it is also true that this engine was within his view immediately after lie passed the box cars. But-some consideration must be given to the fact that his horses, although under his control, were restive because of the box car and were slipping. Naturally to a certain extent these facts engrossed his attention. Of greater significance was the absence of the flagman, which circumstance tended to throw plaintiff off his guard and to allay apprehension of danger. He says he looked for this flagman 100 feet before reaching the crossing and again after passing the box car. There is no pretense that the latter was attentive to his duty although it was his duty to the knowledge of plaintiff to guard this crossing. We cannot say as matter of law that under the circumstances here existing it was the duty of plaintiff after he passed the box car to see the engine and stop Ms horses before reaching the sixth track, where they became unmanageable. Plaintiff having ' been nonsuited, is entitled on this appeal to the most favorable inferences properly dedúcible from the evidence. The jury on the foregoing facts might have exonerated him from the imputation of negligence and should have been given the opportunity to do so.

The judgment must be reversed and a new trial granted, with costs to tlie appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event. ,  