
    (10 Misc. Rep. 740.)
    ROHE et al. v. THIRD AVE. R. CO.
    (Common Pleas of New York City and County, General Term.
    January 7, 1895.)
    Street Railroads—Injury to Persons on Track.
    One who drives ou a street-car track knowing that a car is about a block distant, approaching at 10 miles an hour, and does not hurry or look again for the car, is guilty of contributory negligence.
    Appeal from Eighth district court.
    Action by Florian Rohe and another against the Third Avenue Railroad Company. From a judgment in favor of defendant rendered by the justice without a jury, plaintiffs appeal.
    Affirmed.
    Argued before BOOKSTAVER and BISCHOFF, JJ.
    Herbert C. Smith, for appellants.
    John Vernon Bouvier, Jr., for respondent.
   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. No, 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 must therefore stand. Judgment affirmed, with costs.  