
    John Clancy, App,lt, v. Troy and Lansingburgh Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    Negligence — Oontrlbutoby.
    Where the plaintiff, by his own act, contributes to the injury of which he complains, and undertakes to determine, at his own peril, whether or not he can cross the defendant’s track in safety, the ri-k of that determination is his own, for which the defendant cannot be held responsible.
    Appeal from a judgment entered on a nonsuit.
    
      John T. Norton, (James B. Egan, of counsel), for app’lt; Thomas S. Fagan, for resp't.
   Mayham, P. J.

— This action was prosecuted by the plaintiff (appellant) against the defendant for alleged negligence of the defendant in the management of one of its motor cars, by which it collided with the plaintiff’s wagon, resulting in an injury to the wagon and to the person of the plaintiff. The case discloses that the plaintiff was driving a truck wagon loaded with beer casks, and drawn by a team of heavy horses, and that in crossing the track of the defendant’s railroad the motor car on said track collided with the hind wheels of the plaintiff’s wagon, breaking the axle of the same, by reason of which the plaintiff was precipitated upon the pavement and the wheel of his wagon passed over his foot, inflicting injury upon the plaintiff’s person. On the trial it appeared that the injury occurred at the intersection of Eiver and Congress streets, in the city, of Troy. The plaintiff was driving his wagon along Congress street, on which there are two tracks of the Electric Railroad, which cross the tracks of. the defendant’s railroad at the intersection of Congress and River streets. At about 5:3Q o’clock, on January 27, 1892, as plaintiff was driving from Congress street bridge,, going east, which the evidence shows was a down grade, when within about fifteen feet of the River street crossing he discovered one of defendant’s motor cars approaching such crossing, at a distance of from fifty to seventy-five feet from the same. The case discloses, by the plantiff’s testimony, that he, was driving on the Congress street track, and that a motor was appi'oaphing in the rear. Instead of turning from such track, he ■ endeavored to avoid collision with the Congress street car by hurry- • ing his team a,cross the defendant’s track, hoping to do so in time to avoid a collision with the defendant’s motor car. In this he misjudged, and thé car collided with the wagon, as above stated. It appears from the evidence that the plaintiff made no effort to stop his team and wagon before reaching the defendant’s track, nor is there any evidence that the conductor of defendant’s motor car made any effort to stop it before the collision.

Upon these facts, about which there seems to be no conflict, the . defendant, at the conclusion of the plaintiff’s testimony, moved.for a nonsuit, on the ground that the evidence did not disclose or tend to prove that the plaintiff was free from contributory negligence. This motion was granted by the trial judge, to which the plaintiff duly excepted. The plantiff also asked the trial judge to submit, as a question of fact, to the jury, the question whether or not the plaintiff was guilty of contributory negligence. The judge refused to submit that question, to which plaintiff also excepted. It is not easy to fix the exact boundary between the question of contributory negligence as a question of law and that of contributory negligence as a question of laet, so as to determine whether or not it is the duty of the trial judge to submit it to the jury. But it seems quite clear in this case that the plaintiff, by his own act, contributed to the injury of which lie complains, and that he undertook to determine, at his own peril whether or not he could cross defendant's track in safety, and that the risk of that determination was his own, for which the defendant cannot be held responsible. The law is well settled that where the defendant is negligent, if the plaintiff, by his own negligent act, contributes to the injury of which he complains, he cannot have recourse for damages for that injury to the defendant.

I am therefore of opinion that the nonsuit was right.

Judgment affirmed, with costs.

All concur.  