
    DEMAND v. NEW YORK CENT. & H. R. R. CO., et al.
    (Supreme Court, Appellate Division, First Department.
    January 8, 1909.)
    Appeal from Trial Term, New York County. Action by Charles A. Demand, administrator of Grover C. Demand, deceased, against the New York Central & Hudson River Railroad Company and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant the New York Central & Hudson River Railroad Company appeals. Affirmed. R. A. Kutschbock, for appellant. M. L. Malevinsky, for respondent.
   PER CURIAM.

Judgment and order affirmed, with costs.

McLAUGHLIN, J.

(dissenting). Plaintiff’s intestate was in charge of a horse which furnished the motive power for a hoist between two tracks of the defendant railroad company. The space between the tracks was over 20 feet. The horse “edged over” toward one of the tracks, and in endeavoring to force the horse back nearer the center of the open space the decedent was struck by a passing train and killed. He was between the horse and the track, and the train did not strike the horse. If this was not contributory negligence, at least, I do not think any negligence was shown on the part of the defendant. As I read the evidence, when the train came in sight some 1,300 feet away, the decedent was not then in a position where he would have been struck, and the horse was quiet and apparently under his control. The engineer was not negligent in making no effort to stop the train at that time, and the only evidence is that, as soon as the danger of an accident became apparent, he did make every effort to stop the train and prevent the accident. “Reasonable care in the management of trains, which must make their time between stations and have the right of way, does not require more.” Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164, 11 N. E. 380. For these reasons, I think the judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event.

LAUGHLIN, J., concurs.  