
    Abram Meddaugh, as Administrator, etc., Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
   Judgment affirmed, with costs. —

Putnam, J.:

This case is a close one, but I am inclined to think that the trial judge properly submitted the question of contributory negligence to the jury. As the deceased approached the railroad crossing his view to the east was cut off by the Wilkinson store, twenty-eight feet wide and seventy feet deep and only seven feet from the track. He was sitting on the rear end of the wagon, eighteen or twenty feet from the head of the horses. When the horses went on to the railroad track he was prevented from looking to the east by the store. He could not look down the track until he was twelve feet from it, and, when his horses must have crossed. As the witness Leroy testified : “ t the time Meddaugh drove on the track he could not have seen this engine if he had looked. I think that as soon as it was possible for him to see the engine he made an attempt to get off. He looked around as soonashecould see. * * # Ingoing from where he stopped to wait for this freight engine he did not have any opportunity to see the railroad until he got clown to Wilkinson’s store, and then coul'l not see it except beyond the switch. If the train was behind the store, or between the switch and the store, he could not see it looking through there.’' I think this evidence raised a question of fact as to the contributory negligence of deceased that was properly submitted to the jury. (Cook v. N. Y. C. & H. R. R. R. Co. 35 N. Y. St. Repr. 525; 128 N. Y. 635.) I am, therefore, in favor of affirming the judgment. Mayham, P. J., concurred ; Herrick, J., dissented.  