
    Stephen Morse, by his committee, vs. The Erie Railway Company.
    It is negligence, in a person driving a team to approach a railway crossing without looking to see whether a train is coming.
    The plaintiff was approaching a railroad crossing, driving at a dangerous rate a pair of young, high-lived horses, one of them afraid of the cars, just as a train of cars was passing. He looked neither to the right nor left, but straight ahead, apparently striving to hold his team, and disregarded a warning given him, of the impending danger. In an action to recover for injuries occasioned by a collision with the locomotive; held that the plaintiff was guilty of negligence in approaching a crossing at so rapid a rate of speed as to render it difficult, if not impossible, 'after discovering the danger, to stop his team before the train arrived; in not looking for a passing train; and in not observing, or disregarding, the warning given. And that he was therefore properly -nonsuited.
    Talcott, J., dissented, on the ground that there was evidence sufficient to go to the jury.
    THIS action was brought to recover for injuries sustained by the plaintiff through the negligence of the defendant’s employees, who were employed in running a train of cars on its road, which struck the plaintiff and injured him so that he became insane, and injured a pair of horses he was driving.
    The accident occurred on the 20th. of September, 1865, near the village of East Gainesville, in the county of Wyoming. The plaintiff and his wife were in a two horse lumber wagon, going from Gainesville south. The horses attached to the wagon were six years old, well broke; one of them very much afraid of the cars. The plaintiff stopped to water his horses at the pump in front of the hotel, some 628 feet from the crossing of the highway over which he was driving and the railroad track. After watering, he drove down to the crossing, when his wagon was struck by the defendant’s engine, the horses injured, the wagon broken, the plaintiff himself seriously injured and his wife killed.
    The road on which the defendant was driving runs nearly parallel to the railroad. The angle of divergence at the crossing only six or eight degrees. The first that can be seen of a train coming from the north, in which direction the train that injured the plaintiff was moving, by a person going from the tavern to the crossing, is where it is within about 730 feet of the crossing, as there is a cut which hides the train until within the distance last mentioned. There are, on the west side of the highway leading to the crossing, six buildings, which prevent a train being seen after leaving the cut, until it reaches the crossing. The interruption is not constant during the whole distance, but only while passing the buildings. The first is a hotel, with shed and barn attached. The next is a dwelling-house ; the next a car house, wood shed and water tank; and lastly, the station. The station is 157 feet from the place of the collision. The station is 75 feet long, wood shed, tank, &c., 67 feet; the dwelling-house 34 feet." The length of the hotel, barn, &c., is not given. When the plaintiff approached the station the train had just come out of the cut. As he passed behind the station, he was about 340 feet from the point of collision. The station being 75 feet long, he was only 165 feet from it when he had cleared the station.
    The signal post is 67 feet from the point of collision; and on the east of the highway there is an embankment or hill so near the margin of the highway that it is dangerous, if not impossible to turn round a team on the highway; and to climb the bank is to incur the risk of turning over the wagon.
    The train, being a light one, did not make as much noise as a larger one. Some of the witnesses say that neither a bell was rung nor whistle sounded, and others say the only signal given was sounding the whistle immediately before the collision occurred.
    The defendant’s witnesses testify that the plaintiff drove down the hill at a fast trot, ‘some six or eight miles per hour, not looking to the right or left, but straight ahead, apparently striving to hold his team. One witness testified that, apiprehending a collision, he shouted to the plaintiff and tried to stop him, but he paid no attention to him. The tail-board of the wagon box was loose, and made a good deal of noise. Some of the witnesses thought that if the plaintiff had been driving slow, he might have stopped and turned the team after discovering the train. Others think it was doubtful; especially with a horse that was afraid of the cars. There can be po doubt but that the defendant was guilty of negligence.
    The court nonsuited the plaintiff, and ordered the exceptions to be heard in the first instance at the General Term.
   By the Court, Mullin, P. J.

The Court of Appeals has held it to be negligence in a person driving a team to approach a railway crossing without looking to see whether a train s approaching. (Gorton v. Erie Railway Co., 45 N. Y. 660.) This the plaintiff did not do. Again; he drove at a dangerous rate, a pah of young, high-lived horses, while approaching the crossing, rendering it difficult if not impossible, after discovering the danger, to stop them before the train arrived. He disregarded the warning that one of the witnesses gave him of the impending danger, if he heard or saw the person who gave it. If he did not, it was because he was not observant of what was occurring on either side of the highway; whereas he should have given his attention thereto ; especially as he was approaching a place of danger. These facts are not disputed ; indeed some of them are sworn to by the plaintiff’s own witnesses.

The only answer that could be given to them, that occurs to me, is, that it was impossible for him to see the train, by rdason of the intervening houses, until he was so near the track'that it would, have been impossible to stop his team and escape the collision, no matter what amount of care and caution he had exercised. The witnesses differ as to the distance from the track a train approaching from the north could be seen after passing behind the station. Some say the train can be seen 60 feet from the track; others from 15 to 30 feet.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Miillin, Talcott and M. D. Smith, Justices.]

If the plaintiff had been driving at a moderate rate of speed, he could have stopped his team within even the shortest distance. ■ It is true he might be incurring as great danger from his horses, if he attempted to stop close to an engine in motion as by encountering a collision of the train. But in the one case absolute destruction was certain, in the other escape was possible.

The court was right in nonsuiting the plaintiff; and the motion 'for a new trial must be denied, and judgment ordered for the defendant, on the nonsuit.

Talcott, J.,

dissented, on the ground that there was evidence sufficient to go to the jury.

New trial denied.  