(dissenting):
If an automobile were approaching a railroad crossing, over which was passing a train of cars, at the rate of twenty miles an hour, and without stopping its speed should run into that train, all would agree that the chauffeur was guilty of contributory negligence. If in his reckoning the train had just passed over so that he crossed safely it would still be reckless driving. It is just such driving that makes the automobile almost a public nuisance to all who have occasion to use the *426streets. Assuming that the chauffeur reckoned that the defendant’s lumber wagon would get across the road so that he could pass in safety, a farm hand might well become confused and unwisely stop his horses, and a prudent chauffeur in approaching such an obstacle would have his car under control. It would be a salutary rule to establish that car drivers who indulge in the practice of just grazing moving obstructions, whether they be persons or things, should be well penalized when their reckless calculation misses.
The failure to bring the clutch back to neutral did not in any way affect the driving of the car before the car came to the obstruction. It was only after the chauffeur found himself compelled to dodge around the wagon and in so doing was thrown from his seat, that the failure to get the clutch back to neutral had any effect. In cars with the transmission which this car had there is always a pedal to remove the power from the car so that the brake may be applied effectively. In my judgment the judgment and order should be reversed on account of contributory negligence of the chauffeur.
Kellogg, J., concurred.
Judgment and order affirmed, with costs.