Winch v. Third Ave R.

That . the plaintiff was guilty of contributory negligence is conclusively established by the adjudication of the court of appeals in Scott v. Railroad Co., 130 N. Y. 679, 29 N. E. 289. The court did not overlook the rule that if defendant could, by the exercise of ordinary care, have prevented the accident, the plaintiff was, notwithstanding his own negligence, entitled to recover; but we held that the case is not within the rule, because there was no proof that the defendant could, by the exercise of ordinary care, have avoided the collision complained of. Motion denied, with $10 costs.