
    Polly A. Hood, as Administratrix, etc., of Isaac Hood, Deceased, Appellant, v. The Lehigh Valley Railroad Company, Respondent.
    Fourth Department,
    November, 1905.
    Negligence — contributory negligence in driving across tracks — inabil-" ity to control horses due to such contributory negligencé — sudden peril confronting driver caused, by his own negligence.
    Plaintiff’s intestate, was killed by a-train While driving across railroad tracks in a village.- The crossing was level with practically an uninterrupted view down the tracks for a long distance. The deceased, who was vigorous and active, though slightly deaf and having slightly defective eyesight, drove his .horses at a fast walk or Slow trot, and though he turned his head in both directions bn approaching the track,, he did not abate his speed.
    
      Held, that there was contributory negligence on Bis part which barred a recovery.
    A row bfi trees thirty feet apart, parallel-to the track, the nearest of which was • distant one hundred and fifty feet -from the crossing, cannot be regarded as a-substantial obstruction to vision. .
    If the intestate’s horses became unmanageable when close to the track, he was primarily responsible in driving them so near the train. Such plaintiff cannot assert the principle that one confronted with sudden peril is' not responsible for his acts, as the emergency was created by the intestate in. negligently-approaching, the crossing. ■
    
      Appeal by the plaintiff, Polly A. Hood, as administratrix, etc., of Isaac Hood, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Genesee on the 9th day of January, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Genesee Trial Term, and also from an order entered in said clerk’s office on the 9th day of January, 1904, denying the plaintiff’s motion for a new trial.
    
      William E. Prentice, for the appellant.
    
      James McCormick Mitchell and Chester Odiorne Swain, for the respondent.
   Spring, J.:

The plaintiff’s intestate, Isaac Hood, on January 8, 1900, was struck by an east-bound fast freight train on the defendant’s railroad at the Ellicott street crossing in the village of Batavia and instantly killed. He was riding in a lumber wagon loaded with potatoes and was driving an old team and going from his farm to Batavia southerly along Ellicott street at the time of the collision. This street is seventy-six feet in width and extends in a southeasterly and northwesterly direction. At the crossing there are three tracks, the southerly of which was used for east-bound trains. West of the crossing and about one thousand feet distant is the depot. The highway is level as it approaches the crossing and the defendant’s tracks towards the west are straight for several miles and the view of an approaching train is practically unobstructed for a long distance. Horth of the railroad tracks and along the westerly side of Ellicott street were four maple trees, the nearest to the crossing about one hundred and fifty feet and a space between them of thirty feet. These trees were each about fifteen inches in diameter and the lowest limbs about eight feet from the ground and they were devoid of foliage. While the claim is made that these trees impeded the-vision of a traveler along the street, yet they cannot be regarded as substantial obstacles. Every tree or pole in a highway cannot be made the excuse for a man’s failure to observe, a coming "train and it is not to be assumed that he casts his eyes train-ward just at the nick of time when the tree or pole may possibly be in the focus of his vision. Still further to the north on the westerly side of the highway and more than four hundred and fifty feet . distant from the crossing was an orchard.

Mr. Hood was killed about three o’clock fin the afternoon. The weather was clear but cold. He had lived for more than thirty years within three miles of the highway Crossing and must have been familiar with it and with the surroundings generally. He was seventy-three years of age, vigorous, active and intelligent.

His horses approached the crossing at a shacking gait, either a fast walk' or a slow trot. He turned his head in either direction as he came near the crossing but his team did not stop or abate their speed. When close to the crossing they reared and jumped and were about over the southerly track when the collision occurred.

Vre may assume the negligence of the defendant in omitting to give any signal of the approach of the train.

There .is, however, no sufficient proof' to exonerate the intestate from carelessness. With an unimpeded view of the oncoming train he kept his team trudging along either entirely oblivious of his duty to himself or ■ else deluded fin the belief that he could pass safely ahead of the train.' There is proof that his team when close to the danger point “jumped” or “pranced” but not. sufficient tó show that they were uncontrollable. In any event by his own inattention or desire to hurry over he had allowed his horses to approach close to the crossing so that if they did become frightened and unmanageable he was primarily responsible for permitting them to get near to the train when he. should have avoided the peril. Mor do we think the case is one where the principle applies that a person confronted with a sudden peril is not responsible if he fails to act discreetly. The emergency, if any, was created by Mr: Hood and did not arise until he had been negligent in approaching the crossing.

It is urged in extenuation of his conduct that his eyesight and hearing were defective. Infirmities of this kind often. have an important bearing when% negligence is imputed to their possessor. The evidence relating to these infirmities does not, however, uphold the broad scope credited to it. The widow in describing the intestate testified: “ Mr. Hood’s health was pretty good for his age. He was not a sick man' He could not hear very well, lie. was quite ■ deaf. He could not sée very well. If any one' passed along the yoad he would ask some of us who they were.. He could read with his. glasses on. Did not drive with his glasses. Me ver wore his glasses on the road.”

His daughter said he “ did all kinds of farm work but plowing. My father was quite deaf. If we blew the dinner horn he could hear that to come to his dinner, He used to come. He used to converse with members of the family, if we were near enough. My father’s vision was not first rate. He often would ask who people were who were passing. If I should meet him on the highway, he didn’t know me until I was quite close to him.” The fact that he could not distinguish people casually met is far from indicating that he could not.readily see an approaching train. The proof further shows that he did the work on his farm, managed his team, doing his chores and all the labor except plowing incident to carrying on a farm of sixty-five acres. He was an old man but physically strong and as alert as men usually are at that age. He was often on the road with his team and knew how to handle them. His faculties were not impaired sufficiently to palliate his utter lack of attention when approaching this crossing.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  