
    Florian Rohe et al., App’lts, v. Third Avenue R. R. Company, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 7, 1895.)
    
    Negligence—Contributory.
    One who, knowing that a street car, about a block distant is approaching at the rate of ten miles an hour, drives upon the track without hurry- ■ ing or looking for the car, is guilty of contributory negligence.
    Appeal from a judgment in favor of the defendant, rendered by the justice without a jury.
    
      Herbert C. Smith, for app’lts; John Vernon Bouvier, Jr., for resp’t.
   Bookstaver, 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 uptown —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 uptown 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 uptown track , did you again look before crossing the downtown track to see how far the car was away from you ? A. Mo, 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 downtown 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 mnst therefore stand. Judgment affirmed, with costs.  