
    Christina L. Allen et al., as Administrators, App’lts, v. New York Central and Hudson River Railroad, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Negligence—Railroads—Crossings.
    It is negligence on the part of a person to drive Ms horse to within from two to four rods of a crossing without looking to see if a train is approaching, where there is nothing to obstruct the view of the approaching train from the deceased for a distance of fifty or sixty rods from the crossing.
    2. Same—Proof.
    Under the evidence in this case, it was held that the plaintiff failed to show that the deceased was free from negligence contributing to Ms death.
    .Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Whedon & Ryan, for pl’ffs;
    Charles A. Pooley, for def’t.
   LEWIS, J.

This action is to recover damages for the killing of the plaintiffs’ intestate at a highway crossing of the defendant’s road near Medina, Orleans county. The deceased was a farmer, seventy-two years of age, and had resided in the neighborhood of this crossing for twenty-one years; was familiar with the crossing, and the running of the defendant’s trains. On the 30th day of October, 1892, he was returning home from the village of Medina, in the daytime, and drove along a highway running at right angles with the defendant’s railroad track, about one mile west of the village of Medina. He was in a top buggy, drawn by one horse. He approached the crossing from the north, upon a slow trot, and as he arrived near to the railroad track his horse became frightened and unmanageable, caused by the sharp whistle of the defendant, which was approaching the crossing from the east, with a train of passenger cars. The' horse probably saw the approaching train, which added to his fright. The horse, despite the efforts of the deceased to stop him, ran across the railroad track. The buggy was struck as it was crossing the track, by the engine, and the plaintiffs’ intestate was instantly killed.

There was evidence tending tó show negligence on the part of the defendant in that no signal was given of the approaching train until it arrived within a few rods of the crossing, when the whistle of the engine was sharply and loudly blown. The railroad crosses the highway at grade, and the surface of the land in the vicinity of the crossing is level. There was nothing to obstruct the view of the approaching train by the deceased as he rode along the highway from the north for a distance of fifty or sixty rods from the crossing. The undisputed evidence was that, had the deceased at any time while driving that distance looked towards the approaching train, he could have seen it for a distance of at least-half a mile east of the highway crossing. There was an absence of any evidence tending to show that the deceased looked during that time to see if the train was approaching. There was affirmative evidence that for a portion of that distance he did not make any observation to discover if the train was coming. There were-side curtains upon the buggy. They were down, and the top was-up. The deceased was sitting upon the seat of the buggy, and in. order to look to the east he would have been obliged to incline his body considerably forward. This he does not seem to have-done, but drove along towards the track without apparently paying any heed or attention to the approaching train. There was evidence tending to show that the rambling of the train as, it. moved over the track could he - heard as it left the village of Medina, and all along to the crossing, by a person upon the highway. It was a clear, pleasant day. The evidence shows that there were four of five small trees on the easterly side of the highway, but they did not, at that season of the year, obstruct materially the view to the east from the highway. It was unquestionable negligence on the part of the deceased to drive his horse, as; the evidence shows he did, to within from two to four rods of the crossing without looking to see if a train were approaching from the east. It was a passenger train, which left Medina daily at about the time it did the day in question, so that we must assume that the deceased knew that a train might he expected to arrive at the crossing at about that time. The trial court, upon these facts, held that the plaintiff had failed to show that the deceased was free from negligence contributing to his death, and hence directed a nonsuit. We think the direction was clearly right.

The plaintiffs’ motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.  