Winch v. Third Avenue Railroad

That the plaintiff was guilty of contributory negligence is conclusively established by the adjudication of-the Court of Appeals in Scott v. Penn. R. R. Co., 130 N. Y. 679.

The court did not overlook- the rule that if defendant could, *643by the exercise of ordinary care, have prevented the accident, the plaintiff was, notwithstanding his own negligence, entitled to recover, but wo' 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 ten dollars costs.

Present: Daly, Oh. J., Bischoff and Pbyob, JJY

Miotion denied, with ten dollars costs.