
    Richard H. Shires, Resp’t, v. Fonda, Johnstown and Gloversville Railroad Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894)
    
    Negligence—Contributory.
    A person, who drives on a railroad track without looking for an approaching train, is guilty of contributory negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Baker & Burton, for app’lt; L. F. Fish, for resp’t.'
   Mayham, P. J.

Two questions only seem to be. presented for our consideration on this appeal: First. Was the defendant negligent in running its trains at too high a rate of speed in crossing this highway, without suitable signals and warnings of its approach? Second. Was the plaintiff guilty of contributory negligence, or rather did the evidence show that he was free from contributory negligence, in driving his horse and wagon onto this railroad track at the time of the collision and injury ? The track of the defendant’s railroad starts from the depot at Fonda, and runs in a westerly direction, nearly parallel with Main street in that village, about 1,000 feet, where it crosses the Cayudetta creek, and there commences to curve to the north on an ascending grade of 42 feet to the mile, and, at a distance of 200 feet from the creek, crosses that street af an acute angle with the same. Northerly of the railroad bridge over this creek, and at a distance of 185 feet therefrom, Main street crosses the creek, and continues in a westerly course 128 feet, to where it is crossed by the railroad track. At this junction of the railroad and the street, the carriage of the plaintiff collided with an engine of the defend.ant, and the injury of which the plaintiff complains was inflicted. The accident occurred about 7 P. M. on the 10th of May. The traiii started from Fonda, and was moving up the track towards Johnstown at a moderate rate of speed, and as the same passed over the railroad bridge, 200 feet from the junction, the plaintiff drove over the wagon bridge in the direction of the junction, and 128 feet therefrom. Between the turnpike or street on which the plaintiff was driving, and the railroad track, there appears to have been three intervening obstructions to vision,—one a house 22 feet wide, and two elm trees. With the exception of these obstructions, the railroad track was visible, from the street on which the plaintiff was driving, all the distance from the highway bridge to the railroad crossing. The undisputed evidence shows that from a point on the highway or street on which plaintiff was driving, 45 feet from the track, the view of the track from the crossing to the railroad bridge, a distance of 200 feet, was entirely unobstructed. The train was moving at the rate of from 8 to 10 miles per hour, and seven witnesses swear that the whistle of the locomotive was sounded and the bell rung as the train approached this crossing. The plaintiff, his wife, and a lady riding with them each swear that they did not hear these signals.

Upon these facts, we think that the plaintiff failed to make a case of negligence on the part of the defendant. It does not appear that the defendant’s train, at the time of the accident, was running at an unusual or dangerous rate of speed. And the evidence that the usual signals and warnings were given on the train, on approaching this crossing, seems overwhelming. That evidence is of a positive and affirmative character, and testified to by seven witnesses, some of whom do not appear to be in any way connected with the defendant, and as to those who are shown to be the employes of the defendant, there is no greater presumption of bias attached to their testimony, on the ground of interest, than would attach to the testimony of the plaintiff and the two íadies riding in the-carriage with him. The burden is upon the plaintiff, who charges negligence upon the defendant, to establish the truth of his charge. In this he seems, upon the evidence, to have failed; and, if the appellate court ought ever to reverse where there is some evidence in support of a verdict, but a clear and decided preponderance of evidence against it, this is such a case. But if there is sufficient evidence of negligence on the part of the defendant to uphold the verdict, we think that the evidence wholly fails to establish the plaintiff’s freedom from contributory negligence. As we have seen, the plaintiff was in plain view of this track, for most of the distance from the railroad and wagon bridges to the crossing at which the accident occurred. He was acquainted with the location of the highway and railroad track. The evidence shows that if, on approaching the railroad track, he had looked, he could and must have seen the approaching train. Had he done so, he could without difficulty have avoided collision by turning to the right-, -into the public road on the east side of the Lisner House, or, if he had passed that house, by turning into the road to the coal house, between the Lisner House and the railroad sign, either of which presented a safe and accessible way of escape. It is true the plaintiff testifies that he was lookiug to the north, and did not observe the approaching train on the south; but, as trains were liable to approach from either direction, he was required, in order to relieve himself from the imputation of negligence, to look in both directions. Cullen v. President, etc., D. & H. C. Co., 113 N. Y. 667; 23 St. Rep. 719; Crandall v. Lehigh Val. R. R. Co., 72 Hun, 431; 55 St. Rep. 170. We think that the learned trial judge erred in refusing to nonsuit the plaintiff, on the motion of the defendant, at the close of the testimony, and in refusing to set aside the verdict and grant a new trial on defendant’s motion upon the minutes.

Judgment reversed, and a new trial granted; costs to abide the event.  