
    Charles H. B. Perkins, Adm’r, Resp’t, v. The Buffalo, Rochester & Pittsburgh R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 19, 1890.)
    
    Negligence — Railroad crossings.
    Plaintiff’s intestate while driving across defendant’s railroad received injuries from a locomotive which caused his death. There were obstructions to the vision in the direction from which the locomotive came, and defendant’s agents had left a box car projecting into the highway and near its center. There was evidence tending to show that statutory signals were not given. It was also shown that as deceased was passing the car he rose up to ascertain if any train were coming, and the engineer testified that he did not see the horse until it emerged from behind the car. Held, that the evidence justified the finding of negligence on the part of defendant, and that deceased exercised proper care for his own safety.
    Appeal from a judgment of $3,000 in favor of the plaintiff, entered upon the verdict of a jury at the September term of the Wyoming circuit, 1889, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court.
    
      H. G. Danforth, for app’lt; M.H. & H. M. Bartlett, for resp’t
   Macomber, J.

The injuries to plaintiff’s intestate, Chauncey H. Perkins, to recover damages for which, this action is brought, were received by the intestate on the 21st day of February, 1889, at a railroad crossing in Middlebury, and resulted in the death of the injured man shortly after the accident.. The deceased was a man nearly seventy-one years of age. He was driving one horse attached to a sleigh. He sought to cross the defendant's track upon the highway which runs at ai right angle across the railway property. The locomotive, with which the horse collided, was approaching from the south. The deceased was upon the west side of the railroad. From the highway approaching the railway tracks were obstructions to the sight, consisting, first, of an ice house and near by a coal shed, and directly east of that a restaurant or hotel. The defendant’s agents had projected into the highway a box car and left the same standing there so near to the center of the highway as that it might be touched by a person passing along the beaten track. The deceased was obliged to pass this car, and, until he had done so, there was a serious obstruction to the view to his right. The engineer testified that he, although looking, did not see the horse until just' as he was passing the hotel, when the horse’s head emerged from behind the car.

The evidence to charge the defendant’s employees with the' omission to ring the bell or sound the whistle was such as to justify the jury in their conclusion upon that part of the case. Witnesses whose attention was called to the matter testify that, though observing the locomotive, none of the signals were given.

In respect to the other branch of the case, namely, the proof that the deceased was not guilty of any negligence which contributed to the commission of the injuries is mainly circumstantial, though not wholly. One witness testified that as the deceased was passing the car, he “ rose up in the sleigh apparently for the purpose of ascertaining if any locomotive was approaching.” It is true that the ears of the deceased were somewhat muffled, but the muffling did not appear to prevent his hearing ordinary conversation, for but a moment previous to the accident he had been conversing with an acquaintance upon matters of business. On the whole we think the jury was justified in reaching the conclusion that he exercised proper care for his own safety in approaching this crossing. A perusal of the testimony, and an examination of the map, leaves a very strong impression upon the mind that the obstruction to the highway by the presence there of a freight car was the approximate cause of the collision between the locomotive and the horse of the deceased.

Judgment and order appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur.  