Morse v. Erie Railway Co.

The Court of Appeals has held it to be negligence in a person driving a team to approach a railway crossing without looking to see whether a train s approaching. (Gorton v. Erie Railway Co., 45 N. Y. 660.) This the plaintiff did not do. Again; he drove at a dangerous rate, a pah of young, high-lived horses, while approaching the crossing, rendering it difficult if not impossible, after discovering the danger, to stop them before the train arrived. He disregarded the warning that one of the witnesses gave him of the impending danger, if he heard or saw the person who gave it. If he did not, it was because he was not observant of what was occurring on either side of the highway; whereas he should have given his attention thereto ; especially as he was approaching a place of danger. These facts are not disputed ; indeed some of them are sworn to by the plaintiff’s own witnesses.

The only answer that could be given to them, that occurs to me, is, that it was impossible for him to see the train, by rdason of the intervening houses, until he was so near the track'that it would, have been impossible to stop his team and escape the collision, no matter *493what amount of care and caution he had exercised. The witnesses differ as to the distance from the track a train approaching from the north could be seen after passing behind the station. Some say the train can be seen 60 feet from the track; others from 15 to 30 feet.

Miillin, Talcott and M. D. Smith, Justices.]

If the plaintiff had been driving at a moderate rate of speed, he could have stopped his team within even the shortest distance. ■ It is true he might be incurring as great danger from his horses, if he attempted to stop close to an engine in motion as by encountering a collision of the train. But in the one case absolute destruction was certain, in the other escape was possible.

The court was right in nonsuiting the plaintiff; and the motion 'for a new trial must be denied, and judgment ordered for the defendant, on the nonsuit.

dissented, on the ground that there was evidence sufficient to go to the jury.

New trial denied.