This is an action on the case, brought by the plaintiff to recover damages which he alleges he sustained by a collision of his milk wagon, driven by an employee, with one of the defendant’s cars, August 6th, 1914. The verdict was' for the plaintiff, and the defendant brings the action to' this court on a motion for a new trial.
Held;
r. That the car was proceeding at it’s usual rate of speed, and not an excessive rate; that there was no evidence that justified the jury in finding that the defendant was not operating it’s car with due care at the time of the accident and immediately preceding.
2. That the plaintiff’s servant was guilty of contributory negligence in driving his team on to the track in front of the approaching car without looking to see whether he had time to cross or nol. As the servant of the plaintiff knew that the car was approaching him, and did not take proper steps to avoid it, he is chargeable with contributory negligence.
3. That “The last clear chance” doctrine does not apply in this case, because the testimony shows conclusively that as soon as the plaintiff’s servant attempted to drive across the track in front of the approaching car the motorman saw him and did all that he could to avoid the accident and, by the exercise of due care, could not avoid it.
Motion sustained. New trial granted.