I agree with the supreme court, that the undisputed testimony very clearly established that the plaintiff was guilty of negligence on his part, which at least contributed to, if it did not wholly cause the collision complained of.
It seems to me, that no one, carefully reading the testimony, can doubt but that the plaintiff was guilty of gross carelessness in driving his team on the railroad track. Allowing that he did not stop his team on the track, as some of his witnesses say he did, yet he knew the time the afternoon train would pass along the track. It was the regular train from Buffalo to the Falls, and passed the same time every afternoon. The plaintiff lived within a few rods of the road, and must have known of the afternoon train and also the regular time for its passing along the track; it was incumbent upon him to keep a lookout, or keep away from the road. He could see the railroad several rods before reaching the crossing, and if due care had been observed by him to avoid the collision, he could not have failed of discovering the approaching train.
*214In my opinion, the judge should have granted the nonsuit, after the testimony was closed, or should have instructed the jury to render a verdict in favor of the defendant. It was sufficient for the defense that the plaintiff resided near the railroad where the collision occurred,, and knew the time of the afternoon train passing down the road. He, therefore, was warned to keep his team out of reach -of the cars. It is clear to my mind that the plaintiff was guilty of negligence on his part, which contributed to the injury that he received by the collision. / ”
If this is a correct view of the case, then the law is well settled that the plaintiff could not recover in the action. It cannot be necessary to cite the authorities to sustain this principle.
My opinion is, the judgment of the supreme court must be affirmed.
A. S. Johnson, J.The supreme court was, I think, right in reversing the judgment in this cause, and granting a new trial. The point was, whether the plaintiff had been guilty of negligence, which contributed to the injury complained of. It appeared conclusively that the plaintiff stopped upon the track while driving across it, and if he had continued his course the accident would not have occurred. The attempt to cross a railroad track without looking up and down it, to see if any train is appaoaching, seems to me to be such an act as a man of ordinary prudence would hardly be guilty of. To stop upon it it without taking that precaution must be reckoned a still greater departure from prudent conduct. Spencer v. Utica & Erie R. R. Co., 5 Barb. 337; Haring v. N. Y. & Erie R. R. Co., 13 Id. 9.
.Judgment affirmed, with costs.