
    Bridget Ward, Adm’rx, Pl’ff, v. The Rochester Electric Railway Co., Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Negligence—Contributory.
    Plaintiffs intestate while driving in an open wagon attempted to cross defendant’s track to reach a hotel, when the back of his wagon was struck • by a car and he received injuries from which he died. It appeared that he could have seen the car approaching had he looked, but he was sitting with his head bent forward and did not look in either direction. Held, that he was guilty of contributory negligence and that a nonsuit was properly ordered.
    Motion by the plaintiff for a new trial, directed to be heard at the general term in the first instance.
    The cause was tried at the Monroe circuit, on the 2d day of Tebruary, 1891. At the close of plaintiff’s evidence she was non-suited.
    The action was to recover damages for the killing of Timothy Ward by the negligence of the defendant, on the 29th day of July, 1890.
    
      J. & Q. Van Voorhis, for pl’ff; Theodore Bacon, for def’t
   Lewis, J.

The defendant owns and a street surface extending northerly city ester to the shore of Lake Ontario, at Charlotte.

Its track runs along the westerly edge of the travelled part of the highway known as the Boulevard. Its cars are propelled by ■electricity.

The deceased was a farmer, residing upon the Boulevard near the lake, and was, at the time of receiving the injuries which resulted in his death, returning from the city, riding along the Boulevard in an open wagon drawn by one horse. West of the track and Boulevard was a hotel with a semi-circular driveway leading to it from the Boulevard.

The deceased arrived at this driveway at forty minutes past six on this 29th day of July, and turned his horse into the driveway toward the hotel. As his wagon Was upon the defendant’s track, the back part of it was struck by the cars of defendant running northerly, and the deceased received injuries from which he died.

The proof tended to show that the defendant was guilty of negligence causing the deceased’s injuries, but the plaintiff, we think, wholly failed to show that the deceased was free from negligence contributing to the accident.

From the time he left the travelled part of the Boulevard to ■cross the track, the defendant’s track and the cars moving thereon for a quarter of a mile to the south could have been plainly seen by him had he looked in that direction. His horse was upon a. walk ; he was sitting upon the seat of the wagon with his head bent forward; he drove upon the track without looking in either di.rection.

He drove upon the track apparently paying no attention to whether the car was approaching him.

He was' acquainted with the Boulevard and with the running •of the defendant's cars. A glance to the south at any time before he reached the track would have informed him of the approach of the defendant’s cars.

He heedlessly and negligently drove upon the track, and it ..seems to be quite clear that he was not free from negligence contributing to his death.

There was some evidence tending to show that he was somewhat intoxicated that afternoon.

Judgment should be ordered for the defendant upon the non- ; Suit, with costs.

Dwight, P. J., and Macomber, J., concur.  