
    George E. Nash, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    ¡Negligence—Railroad crossing—Contributory negligence.
    Plaintiff lived on the easterly side of defendant's railroad. On the afternoon of a clear day he drove down a private lane to a gate seventy-nine feet from the track, which his son opened, and he then drove on down the lane on a walk until he reached level ground, thirty-five feet from the easterly track of the railroad, then on a trot to and upon the track, when an engine, approaching from the south, struck the horses and wagon, killing his wife and injuring him. Beld, that as plaintiff knew that the trains from the south ran upon the easterly track, • hut did not, after passing through the gate, listen for any train nor look south for the train until his horses had substantially reached the track, which he could have seen for half a mile during the last twenty-five feet, he was guilty of contributory negligence which would defeat his claim for negligence, even though the engineer failed to ring the hell or blow the whistle.
    (Ruger, Ch. J., and Andrews, J., dissent.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff entered unon a verdict rendered at circuit.
    
      Calvin Frost, for app’lt; Clarence JR,. Conger, for resp’t.
    
      
       Reversing 22 N. Y. State Rep., 106.
    
   Earl, J.

On the 2nd day of October, 1886, the plaintiff and his wife were in a wagon drawn by'two horses, passing over the defendant’s railroad in Rockland county, and an engine drawing a train of passenger cars came in collision with the horses and. wagon, killing his wife and horses, demolishing the wagon and seriously injuring him. This action was brought to recover damages for his injuries and the destruction of his property. Upon the first trial he was non-suited, and upon appeal by him to the general term he obtained a new trial. Upon the new trial he recovered a judgment, which has been affirmed at the general term.

The sole negligence alleged against the defendant is the ornission of its agents having charge of the engine to ring the bell or blow the whistle as they approached the crossing. There appears to have been a great preponderance of evidence to show that the bell was rung and the whistle blown. But there was some evidence tending to show that these signals were not given, and hence we cannot say that the question of the defendant’s negligence should not have been submitted to the jury.

But we think the undisputed evidence shows negligence on the part of the plaintiff, and that his complaint should, therefore, have been dismissed.

At the place of the accident the railroad runs north and south. The plaintiff lived on the east side of the road several hundred feet therefrom, and was perfectly familiar with the road and the running of its trains. There was a private lane from his residence across the railroad to the highway on the west side thereof. The defendant owned a strip of lancl seventy-nine feet wide on the ""easterly side of its road, and on the easterly side of the land there was a fence, and in the line of the fence there was a gate across the plaintiff’s lane. He drove to this gate in the afternoon of a clear day, and his son opened the gate and he drove through it down the lane on a walk until he reached level ground thirty-five feet from the easterly track of the railroad, and then he permitted his horses to trot to and upon the railroad track until the engine approaching from the south struck the fore part of the wagon and the hind part of the horses. The rails of the track were four feet and eight inches apart and the two tracks were eight feet apart. The plaintiff knew that the trains from the south ran upon the easterly track, and that thus he would first be exposed to peril upon that track, and y* after he passed through the gate he did not listen for any train while passing over the seventy-nine feet, and he did not look to the south to see if a train was approaching from that direction until his horses, trotting, had substantially reached the track, although if he had looked toward the south at any point within twenty-five feet of the easterly rail he could have seen the track for half a mile.

Under such circumstances we do not see how the plaintiff can escape the charge of contributory negligence. He knew he was approaching a place of danger and yet took no precaution whatever to avoid it until it was too late. The fact that he could not see to the south until within twenty-five feet from the track made it his duty to be vigilant for his protection when he could see and when vigilance would avail him. It is clear that if he had taken that care of himself which everyone is bound to when he approaches such a place of danger, this most unfortunate accident could not have occurred. A momentary glance to the south would have been sufficient.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur, except Ruger, Oh. J., and Andrews, X, dissenting.  