
    Frank Fleissner, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Negligence—Railroad crossing.
    While plaintiff’s son was driving his team across defendant’s track at a street crossing in the -morning, the team and wagon were struck and injured by a train. The son testified that he looked both ways but saw no train and did not hear the bell or whistle; that while driving on a walk he saw the train coming and tried to get out of the way, and whipped up the horses as best he could. The view of the track was unobstructed by buildings, for a space of twenty-five feet from the track, and although plaintiff’s witnesses testified that freight cars were so situated on a side track close to the street as to obstruct the view, yet it was shown by subsequent measurements that no s’de tracks existed within 112 feet of the street. Held, that a verdict for plaintiff was not supported by the evidence.
    Appeal from a judgment entered in Brie county, January 16, 189-1, on a verdict of a jury at the circuit; and also from an order denying the defendant’s motion for a new trial made on a case and exceptions. . .
    
      James Fraser Gluck, for app’lt; John M. Hull, for resp’t.
   Macomber, J.

The action was brought to recover damages to the plaintiff’s horses and wagon received in a collision with the defendant’s train at the railway crossing' on Clinton avenue in the city of Buffalo, June 22, 1889.

The plaintiff’s son was engaged in hauling stone from the canal through Clinton avenue across the defendant’s tracks to Niagara street. He was a young man sixteen years of age, and was well acquainted with the crossing in question. His horses were tractable and easily managed, and not specially afraid of locomotives. While attempting to cross the tracks of the defendant, going from Niagara street westerly, the defendant’s engine struck the wagon and horses. The locomotive was coming from Suspension Bridge to the city of Buffalo, running from twenty to twenty-five miles an hour. The collision occurred at ten o’clock in the morning.

The plaintiff’s son testified, in substance, that while returning from Niagara street he looked in both directions while approaching the defendant’s tracks, but saw no locomotive. He also says that he did not hear the sound of any approaching train. He has given no evidence of actually listening for the approach of a train other than as an inference which may be drawn from his affirmative testimony that he looked in both directions, indicating thereby that his mind was upon the dangers of an approaching train.

After testifying that he heard no bell or whistle, he says that while driving on a walk he saw the train coming and tried to get out of the way and whipped up the horses as best he could. He further testified that there was a saloon on the corner between the waiting room and Niagara street; that before passing the waiting room he looked for the train, and that the next time he looked was when he was on the track. He also testified that he looked once when he was right by the waiting room, and then he says that he went on and looked until he got onto the track where he was struck.

These obstructions, however, ceased to prevent a clear view of the tracks to the north for a space of twenty-five feet east of the east track, from which direction the driver was approaching. Other evidence was given in behalf of the plaintiff from which it is claimed that there were standing upon a side track, and close to Clinton avenue so as to obstruct the view, freight cars belonging to the defendant One of the witnesses says that these were within four or five feet of Clinton avenue. This evidence, however, is not by any means satisfactory, and in view of the testimony given in behalf of the defendant ought not to have been deemed sufficient to sustain a verdict upon the ground of any obstruction of the view by reason of cars standing upon the defendant’s side tracks; for testimony is given by witnesses in behalf of the defendant, in its nature conclusive, being based upon accurate and undisputed measurements, to the effect that there was no side track, mentioned by the plaintiff or his witnesses, within 112 feet of Clinton avenue, and that for about one-third of a mile, at least, the view, in the direction from which the engine came, was unobstructed for a distance of thirty-eight feet before reaching the second track, the one upon which the plaintiff’s property was - damaged. It is stated, however, in the brief of the respondent that this evidence can be of no effect, because the measurements and observations taken by the witnesses were made and taken long after the accident, and that there is no proof made by the defendant of the condition of this crossing at the time of the accident If this contention were correct, it would, indeed, lead us to the conclusion that the verdict of the jury had been placed upon trustworthy evidence. But upon inspection of the testimony it is found that, though the measurements by the witnesses named were made several months after the accident, yet the evidence thereof was given upon the assumption by the court and counsel that there had been no change in the side tracks between the time of the accident in June and the measurements in the following February. With the testimony given in behalf of the plaintiff, touching such obstruction on the side track, thus shown to have been untrue and so eliminated from the case, there do not remain sufficient facts to support the verdict It seems to us, therefore, that the motion for a new trial should have been granted by the special term upon the ground that the verdict was against the evidence¡

. It follows that the judgment and order appealed from should' be reversed, and a new trial granted, upon the condition, however, that the defendant pay the costs of the trial term. Ho costs of this appeal are allowed to either party.

Judgment and order reversed, and a new trial granted, on payment of the costs of the trial term.

Dwight, P. J., and Lewis, J., concur.  