
    Frank B. Martin, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Negligence—Contributory.
    Where a person is driving a gentle horse at such a rate of speed that he is unable to stop in time to avoid a collision with an engine at a railroad crossing, he is guilty of negligence and, in an action to recover damages for his injuries, should he nonsuited.
    Motion by the plaintiff for a new trial upon exceptions directed to be heard in the first instance at the general term after a non-suit at the Cayuga circuit.
    
      A. W. Shurtleff. for app’lt;
    
      Camp & Dunwell, for resp’t.
   Lewis, J.

This action was brought to recover damages for injuries sustained by the plaintiff, caused by his coming in collision with one of the defendant’s engines at a highway crossing.

Defendant’s negligence was established. The plaintiff was non-suited because he failed to show himself free from negligence contributing to his injuries.

The undisputed evidence showed that the plaintiff approached the crossing upon the highway in an open wagon drawn by a gentle manageable horse, in the daytime; he stopped at the distance ■of one hundred and eighty feet from the crossing and looked and listened, and not seeing or hearing an approaching train, he started up his horse and drove on to the place of collision at a speed of from six to eight miles an hour.

He saw the approaching engine just before the collision, and tried to stop his horse, but was not able to do so in time to avoid the collision.

In explaining why he did not stop in time to avoid the accident, plaintiff testified: “ A man going on a good road gait cannot stop in a minute.” While he testified that he continued to look and listen up to the time of the accident, and did not see the ■engine until it was too late to avoid the collision, it is apparent that his own negligence contributed to his injuries ; had he been driving his horse at a proper rate of speed he could have stopped him in time to have avoided the accident. The jury would not have been warranted in finding otherwise upon the evidence.

The nonsuit was proper, and the plaintiff’s motion for a new trial should be denied and judgment directed for the defendant ■on the nonsuit.

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