dissented, for the reasons assigned by him in his dissenting opinion in McGrath v. The Hudson River Rail Road Company, ante p. 156. In addition to which, the following reasons were given, for his judgment in the present action. “In this case, a man, muffled around his neck and ears, seated in the bottom of his sleigh, knowing all about the rail road crossing at that place, without paying any attention to the fact whether or not a train was coming, drove his horses towards the track, so that the locomotive and the horses came together, without the horses having been at all on the track (for an engineer to see,) and the team was whirled around sidewise; the man was thrown out, and so injured that he died. About one third of a mile of the rail road was in plain sight (if he chose to look) for the whole distance after he left the tavern shed, except some fifteen feet of the way. If he did not see the road, and the coming train, it was because he did not look; if he did see it, he took the risk of driving on *165the track in front of it. In either event, he was, beyond all doubt, careless, and contributed by his carelessness to the injury.”
[Albany General Term, March 5, 1860.Gould, Hogeboom and Peckham, Justices.]
Hew trial granted.