I dissent on the authority of Castle v. Director-General of Railroads (232 N. Y. 430).
Assuming that the automatic crossing bell was not ringing, that did not relieve the plaintiff from the duty of exercising care in such a place of great danger. This danger was heightened by the fact which was apparent to the plaintiff, that he was approaching at an acute angle which compelled him, if prudent and careful, to exercise greater vigilance and to proceed more slowly in order to overcome the difficulty. I do not approve of the laxity of the rule which would relieve the plaintiff from responsibility by taking a “ fleeting glance ” which was insufficient to permit him to discover that which was in plain sight if he had looked with any care.
Van Keek, J., concurs.
Judgment and order reversed on the law and new trial granted, with costs to the appellant to abide the event.