I cannot see enough difference between this case and Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79) to warrant the. conclusion reachéd by Mr. Justice Cullen.
In the latter case the plaintiff was driving up Fulton street at night. Wishing to cross the diowntown track he looked up and saw *289it brightly-lighted car coming down on that track 150 feet away. He gave no sign to the motorman of his intention to cross, but walked his horse across the track diagonally for a distance of two houses when his carriage was struck by the car. The front of the •carriage was struck. (See record.)
In the present case, at a crossing somewhat similar, the plaintiff, who was either in the uptown track or just outside of it, desiring to •cross the downtown track, looked, as he says, saw no car and then -attempted to cross that track. The rear wheel of' his vehicle was -struck. When his horse was on the down track and the wagon yet •on the uptown track he saw a car approaching. Evidently that car must have been visible by him when he says he first looked, so that the old doctrine respecting a man looking and not seeing or not looking, to see ought to apply.
I make this suggestion, believing this case to be “ perilously near ” "the other Meyer case.
Judgment reversed and new trial granted, costs to abide the ■event.