
    (88 Hun, 496.)
    CLANCY v. TROY & L. R. CO.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    Street Railroads—Collision with Vehicles Crossing Track.
    In an action for damages caused by defendant’s street car colliding with plaintiff's wagon, it appeared that plaintiff saw the car approaching on a down grade, and endeavored to cross the track in front of it, supposing that he could do so before the car reached him. Held, that plaintiff was guilty of contributory negligence, as he undertook to determine, at his own peril, whether he could cross the track in safety.
    Appeal from circuit court, Rensselaer county.
    Action by John Clancy against the Troy & Lansingburgh Railroad Company. From a judgment entered on a nonsuit, plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    
      John T. Norton (James B. Egan, of counsel), for appellant.
    Thomas S. Fagan, for respondent.
   MA.YHAM, P. J.

This action was prosecuted by the plaintiff (appellant) against the defendant for alleged negligence of the defendant in the management of one of its motor cars, by which it collided with the plaintiff’s wagon, resulting in an injury to the wagon and to the person of the plaintiff. The case discloses that the plaintiff was driving a truck wagon loaded with beer casks, and drawn by a team of heavy horses, and that in Crossing the track of the defendant’s railroad the motor car on said track collided with the hind wheels of the plaintiff’s wagon, breaking the axle of the same, by reason of which the plaintiff was precipitated upon the pavement and the wheel of his wagon passed over his foot, inflicting injury upon the plaintiff’s person. On the trial it appeared that the injury occurred at the intersection of River and Congress streets, in the city of Troy. The plaintiff was driving his wagon along Congress .street, on which there are two tracks of the Electric Railroad, which cross the tracks of the defendant’s railroad at the intersection of Congress and River streéts. At about 5:30 o’clock, on January 27, 1892, as plaintiff was driving from Congress street bridge, going east, which the evidence shows was a down grade, when within about 15 feet of the River street crossing he discovered one of defendant’s motor cars approaching such crossing, at a distance of from 50 to 75 feet from the same. The case discloses, by the plaintiff’s testimony, that he was driving on the Congress street track, and that a motor was approaching in the rear. Instead of turning from such track, he endeavored to avoid collision with the Congress street car by hurrying his team across the defendant’s track, hoping to do so in time to avoid a collision with the defendant’s motor car. In this he misjudged, and the car collided with the wagon, as above stated. It appears from the evidence that the plaintiff made no effort to stop. his team and wagon before reaching the defendant’s track, nor is there any evidence that the conductor of defendant’s motor car made any effort to stop it before the collision.

Upon these facts, about which there seems to be no conflict,, the defendant, at the conclusion of the plaintiff’s testimony, moved for a nonsuit, on the ground that the evidence did not disclose or tend to prove that the plaintiff was free from contributory negligence. This motion was granted by the trial judge, to which the plaintiff duly excepted. The plaintiff also asked the trial judge to submit,' as a question of fact, to the jury, the question whether or not the plaintiff was guilty of contributory negligence. The judge refused to submit that question, to which plaintiff also excepted. „ It is not easy to fix • the exact boundary between the question of contributory negligence as a question of law and that of contributory negligence as a question of fact, so as to determine whether or not it is the duty.of the trial judge to submit it to the jury. But it seems quite clear in this case that the plaintiff, by his own act, contributed to the injury of which he complains, and that he undertook to determine, at his own peril, whether or not he could cross defendant’s track in safety, and that the risk of that determination was his own, for which the defendant cannot be held responsible. The law is well settled that where the defendant is negligent, if the plaintiff, by his own negligent act, contributed to the injury of which he complains, he cannot have recourse for damages for that injury to the defendant. I am therefore of opinion that the nonsuit was right. Judgment affirmed, with costs. All concur.  