
    Thomas Powell, App’lt, v. The New York Central and Hudson River R. R. Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1888.)
    
    1. Negligence—What must be established by plaintiff.
    In an action against a railroad company for damages for injuries caused by negligence, the plaintiff is bound to establish his own freedom from negligence contributing to the accident causing the injury of which he complains. When he fails in this he is properly nonsuited.
    2. Same—Contributory negligence—Railway crossing.
    On the trial of an action for damages for injuries alleged to have been caused by defendant’s negligence, it appeared that plaintiff approached and crossed the railroad tracks of defendant, driving at the rate of about ten miles per hour, while a strong wind was blowing and it was snowing very fast. He knew that he was approachinga place of danger, and that trains were frequently passing at that place. Held, he was guilty of contributory negligence. That he should have driven slowly and carefully, watching for the approach of trains vigilantly, using his eyes and ears to protect himself from danger. Daneorth and Andrews, JJ., dissenting.
    Appeal from a judgment of the supreme court general term, fourth department, affirming a judgment entered upon a nonsuit granted at the circuit court.
    
      W. T. Dunmore, for app’lt; J. Thomas Spriggs, for resp’t.
    
      
       Affirming 38 Hun, 640, mem.
      
    
   Per Curiam.

—The plaintiff was bound to establish his own freedom from negligence contributing to the accident causing the injury of which he complains. In this we think he failed, and therefore he was properly non-suited.

According to his own evidence, which was more favorable to him than the evidence of the other witnesses, he approached and crossed the railroad tracks at the rate of about ten miles per hour, while a strong wind was blowing from the west, and it was snowing very fast, and his opportunity to see and hear was thus considerably interfered with. He knew that he was approaching a place of danger, and that trains were frequently passing at that place. He should have driven slowly and carefully, watching for the approach of trains, vigilantly using his eyes and ears to protect himself from danger. If he had observed these_ precautions, under the circumstances dictated by ordinary prudence, we think he would have escaped harm.

The judgment should, therefore, be affirmed.

All concur, except Daneorth, J., who reads for reversal, and Andrews, J., concurs.  