
    Bernard Campbell, App’lt, v. Union Railway Company of New York City, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    Negligence—Grossing track.
    It is the duty of a person, before attempting to drive across the line of a railroad, to look for the approach of trains.
    Appeal from a judgment of the district court in the city of Hew York for the tenth judicial district rendered in favor of defendant for the dismissal of plaintiff’s complaint. Action for injury to property by reason of negligence.
    
      C. C. Clarke, for app’lt; Breen & Cohalan, for resp’t.
   Bischoff, J.

There is no merit in this appeal. Plaintiff utterly failed to show any negligence upon the part of the defendant, and, moreover, his own testimony established the fact that he failed of that duty which the law imposed upon him when attempting to drive his horse across the line of defendant’s railroad. It was his duty to look for the approach of cars before crossing the track, Burke v. N. Y. C. & H. R. R. R. Co., 73 Hun, 32 ; 57 St. Rep. 7, and it appears from his own statement, brought out most clearly on cross-examination, that he omitted so to do. ‘ Moreover, had he looked, as it was his duty to do, he would have observed the approaching car, and contributory negligence is to be imputed to him by reason of his failure to so observe, Burke v. N. Y. C. & H. R. R. R. Co., supra, the evidence showing that the car could readily have been seen, in view of the condition of the track and of- the highway. The car was provided with a light according to plaintiff's own testimony, and that of the police officer, Leary, a witness for plaintiff, the o.nly evidence upon the subject, and from which it appears that the light was easily discernible. There was no question upon which 'the jury could be called upon to pass, and the dismissal of the complaint was obviously proper. Discussion of the few exceptions taken upon the trial is unnecessary to demonstrate their futility.

Judgment affirmed, with costs.  