
    Thomas Brickell, App’lt, v. New York Central and Hudson River Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    Negligence—Contributory Negligence—Duty of traveler in crossing A RAILROAD.
    In the trial of an action brought to recover damages for injuries received. by being struck by one of defendants trains at a crossing, there was evidence which showed that plaintiff with others was riding in a top buggy, that when over two hundred feet from the track the driver looked up and • down the track, and that there was no train in sight. He did not look after that, and the occupants of the buggy were engaged in conversation. "When they had gone one hundred and fifty feet further the horse became-unmanageable by reason of the approach of the train. Held, that the plaintiff was guilty of contributory negligence and was properly non-suited.
    Appeal from a judgment entered upon a non-suit granted at Onondaga circuit.
    , Action to recover for injuries received by plaintiff, March 23, 1886, at Palmyra. Plaintiff in company with one Partridge, about two o’clock in the afternoon reached the station on the Central road at Palmyra, and one Pulver, met them at the depot. Brickell, the plaintiff, took passage in Pulver’s top buggy for the village of Palmyra. After leaving the Central station they approached a bridge over a small stream and Pulver testifies, viz.: “As I drove off the bridge I looked and saw that no train was coming * * looked both ways on the West Shore tracks. * * * I don’t think I looked again until I got to the railroad. I didn’t think it was necessary. I hadn’t seen or heard any thing, and didn’t think any thing about it. The plaintiff looked out of the buggy just about the time we went off the bridge.” Plaintiff testified, “As you leave the Central depot, you can see the West Shore tracks in front of you. As I came up in sight of the West Shore, we looked to see if' any train was coming from the east and from the west, both ways, Did not hear any thing and did not see any thing. I did not see this approaching train. I did not hear the rumble of the train, nor the reversal spoken of by one of the witnesses. I didn’t know of the fact that the train was approaching.”
    Pulver testifies, viz: “I should think we were; we might not have been over twenty yards from the crossing; I said thirty, it might not have been thirty when the horse started; I should think he started at a point forty yards from the south end of the bridge.”
    In his cross-examination Pulver says: “I was just on the bridge when I looked last—when we were just going off the bridge; after making that observation we drove along; I don’t think I looked again till I got to the railroad; I didn’t think it was necessary; I hadn’t seen nor heard anything, nor didn’t think anything about it; plaintiff looked out of the buggy; he bent over to look out; when he bent over to look he was on the left hand side of the buggy; Tie did that just about the time we went off the bridge; neither of us looked from that time until we were struck; when within twenty or thirty yards I heard the train coming right close by; I should think it was sixty feet—perhaps seventy-five—from the point of intersection when I heard the train seventy-five feet away.”
    Plaintiff testifies : “ The wind was blowing quite sharp from the northeast; had the wind substantially in our face, on our quarter.” That before they reached the bridge they looked east on both tracks. He testifies : “I was perhaps two hundred feet or more from the West Shore when I looked both ways.” At folio 29, he says: “ In going over the two hundred feet from the bridge to the track we didn’t look,” until just the moment they were hit by the engine. At folio 36, the witness mentions the distance as “about one hundred and forty feet from the bridge that crosses the creek.”
    At the close of the testimony plaintiff was non-suited on the ground that he was not shown free from contributory negligence.
    
      C. H. Sedgwick, for app’lt; Ashbel Green and M. M. Waters, for resp't.
   Hardin, P. J.

In Solomon v. The Manhattan R. Co. (103 N. Y., 437; 3 N. Y. State Rep., 636) it is said, viz: “That it is in law dangerous, and, therefore, a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. And in Tolman v. The S. B. and N. Y. R. R. Co. (98 N. Y., 198) it_ is said of a person attempting to cross a railroad track, viz: “ He must look and listen, and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing,” and in McCall v. The Central Road (54 N. Y., 642) it was said that a person approaching the track with the top of the carriage up, driving fast, without any precautions or thought of the railroad, was guilty of contributory negligence, and was not entitled to recover; and in Woodard v. The N. Y. L. E. and Western R. R. Co. (11 N. Y. State Rep. 169) it was said of a person who was struck by a car being switched and moving by its own momentum, which car could have been seen if the deceased had looked, that he was guilty of contributory negligence. It was also added in that case, viz: “ To be an excuse, the object which diverts the attention must be something which can justify, consistently with prudence, the withdrawal of attention from the near and imminent danger.”

As we read the testimony in the case before us, -the plaintiff did not observe that care, caution and vigilance required by the atithorities to which we have referred, while passing the distance between the south end of the bridge and, the place where the horse became frightened and unmanageable, a distance, according to the testimony of Pulver, of forty yards, or one hundred and twenty feet.

The impression which the testimony before us makes upon our minds is, if the plaintiff or Pulver had attended vigilantly to their duty in approaching the crossing, the injuries in question might have been averted. Apparently they were occupied in conversation, giving no especial attention to the circumstances affecting their safety in crossing the railway, during the progress from the south side of the bridge one hundred and twenty feet onward. It is said there was some snow upon the ground. It is said there was a wind blowing from the northeast.. It was in broad daylight, and e circumstances disclosed indicate to our mind if there had been a vigilant use of the senses the collision would not have happened.

The burden was upon the plaintiff to show that he was not guilty of contributory negligence. Lee v. Troy Citizen’s Gas-light Co., 98 N. Y., 115.

Second. We think the inquiry as to whether the plaintiff knew the fact “that this horse was unmanageable, was of no consequence upon the question of contributory negligence.” The horse behaved well enough until he got within some seventy feet of the railway crossing. If the plaintiff, or the party having him in charge, had attended closely and diligently to his duty, for the one hundred and twenty feet preceding the point where the horse became unmanageable, it is probable no injuries would have been received. However, it is apparent from the whole case that the plaintiff was not free from contributory negligence.

We are inclined to the opinion that the learned circuit judge correctly appreciated the testimony bearing upon the question of plaintiff’s freedom from contributory negligence.

We think the plaintiff and the driver “went blindly” within sixty or seventy feet of the track to the point where the horse became unmanageable, “taking the chances of what might occur, and were thus guilty of contributory negligence.” Woodard v. The N. Y., L. E. and W. R. R. Co. (supra).

Judgment affirmed, with costs.

Martin, J., not sitting.

Follett, J.

I concur. Granger, sworn for plaintiff, testified that at the time of the accident he was driving a cart from the station to the village over the road traveled by the plaintiff, who passed him a few rods from the crossing; that he saw and heard the train and stopped and waited for it; but that the carriage in which the plaintiff was riding, kept right on and was struck. The plaintiff, by his own evidence, established that his negligence contributed to the accident.  