
    Michael F. Dolan, Plaintiff, v. Long Island Railroad Company, Defendant.
    Second Department,
    May 5, 1911.
    Railroad — negligence — collision at grade crossing — contributory negligence.
    A plaintiff who was struck by a train while driving across tracks was guilty of contributory negligence as a matter of law if, on clearing the •building line sixty-five feet distant from the nearest rail, he had an unobstructed view of the tracks when the approaching train was two hundred feet distant, and it appears that, although he claimed to have looked and failed to see the train, he did see it when at least eight feet from the track on which it was approaching, so that he had ample time to avoid the collision if he had exercised any degree of care.
    Motion by the plaintiff, Michael P. Dolan, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term in March, 1910.
    
      Rufus O. Catlin [James C. Cropsey with him on the brief], for the plaintiff.
    
      William C. Beecher [Joseph F. Keany with him. on the brief], for the defendant.
   Rich, J.:

The defendant has- two tracks laid through the center of Atlantic avenue in the borough of Brooklyn, one used for east and the other for west-bound traffic, over which it operated its trains.- At about three o’clock in the afternoon of December 23, 1902, plaintiff drove a team of horses attached to a wagon in which he was riding down Pennsylvania avenue, approaching Atlantic avenue from- the north. One of defendant’s west-bound trains was approaching the crossing at Pennsylvania. avenue at a high rate of speed. There was a flagman stationed at this crossing, but he was in his shanty. As the plaintiff drove upon the west-bound track the flagman rushed out of the shanty, took the horses by the bits, and his efforts brought the horses to a- standstill for a few seconds, when the train collided with the rig, resulting in the injury to plaintiff and his property for which he seeks to recover in this action.

When plaintiff rested his case the defendant moved to. dismiss the complaint upon the grounds that negligence on the part of defendant had not been proven, and that the evidence established plaintiff’s contributory negligence as matter of law. The motion was granted, and plaintiff’s exceptions ordered heard in the first instance here.

To intelligently determine the presence or absence of plaintiff’s negligence in- attempting to drive over this crossing • in front of the approaching train, it will be necessary to consider somewhat fully surrounding conditions as shown by the evidence he adduced on the trial.

The buildings on the north side of and fronting on Atlantic avenue, between Pennsylvania and Sheffield avenues — the first street to the west — are uniformly about twenty feet from the curb. From the north curb to the north rail of the east-bound-track is thirty-two feet and one inch. The distance between the rails of that track is five feet; the distance from the south rail of the east-bound track to the north rail of the west-bound track is approximately eight feet. A person approaching the crossing from the north has a clear and practically unobstructed view of the. tracks of defendant’s road to the west as soon as he is in line with the fronts of the buildings on the north side of Atlantic avenue, twenty feet north of the curb. This view continues for sixty-five feet before the north rail of the west-bound track is reached. One of the plaintiff’s witnesses testifies that when he first saw the plaintiff the heads of his horses were flush with the curb line, which is forty-five feet from the north fail of the west-bound track, on which the collision occurred. . At that time, the witness says, the engine of the approaching train was east of Sheffield avenue, which is two hundred feet west of Pennsylvania avenue. Another witness say's that just before the plaintiff reached the first or east-bound track he looked to the right and left, and that the train was then about.one hundred and twenty-five feet from the crossing. The preponderance of the evidence is that plaintiff approached the crossing with his horses on a slow trot and did not increase or decrease their speed until he had reached or was close to the west-bound tracks, when he increased their speed to cross ahead of the approaching train.- The plaintiff testifies that he was familiar with the crossing, which he repeatedly and frequently crossed in going to and from his house; that he knew that the gates that had formerly been maintained at the crossing had been removed while work was being done at that point; that it was a clear day; that as he approached Atlantic avenue his horses were on a slow trot, which he reduced to a walk on reaching the avenue, and as he reached it- he looked both to the right and left, to see if any train was coming, and that he could not see any. He continues: “After I had got about half way from the curb and tracks I did not look again to the right and left. After my horses got to the first tracks I looked to the right and left. * * * When my horses got over on the other track on which the train was coming, I did not look again. I drove up then until the flagman came out.” He admits that he saw the train when his horses were on. the first track, the south rail of which was eight feet from the track on which the collision occurred, and says the train was then a block away and that he then whipped up his horses and attempted to cross in front of it. Ho explanation is given why the plaintiff, if he looked to the west .as he says he did when he reached Atlantic avenue, did not see the approaching train which his witness says -was less than two hundred feet away when he drove into Atlantic avenue. Upon his own evidence he did see it when he was at least eight feet from the north rail of. the track on which it was approaching, and he had ample time and opportunity, in the exercise of any degree of care, to have avoided the collision. There is evidence in the case .that, if the flagman had not touched the team, the collision would not have occurred; that after he drove on the west-bound track it was impossible to avoid it.

Within the authorities of Wahler v. Long Island R. R. Co. (137 App. Div. 17) and Cranch v. Brooklyn Heights R. R. Co. (186 N. Y. 310) the facts not only fail to establish plaintiff’s freedom from contributory negligence but demonstrate its existence as matter of law.

The plaintiff’s exceptions should be overruled, motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Plaintiff’s exceptions overruled, motion for new trial denied, with costs, and judgment ordered for the defendant on the nonsuit, with costs.  