The question presented by this appeal is whether the negligence of the plaintiff is so conclusively shown by the evidence that we ought to say, as a matter of law, that he is not entitled to the judgment he recovered. The law is plain and simple, but we must try to make its application consistent with the more recent examples given us by the court of last resort ■ — • a task somewhat difficult.
In the case before us a regular passenger train was passing westerly over the railroad upon schedule time, at its regular rate of speed, although in excess of that prescribed by the ordinance of the city in whose outskirts it ran. As it approached the crossing its hell and whistle were heard by others, but not by the plaintiff, owing, probably, to the fact that the wind was blowing strongly from a direction opposite to that which he and the train were moving, and owing to the fact that he had empty milk cans in his wagon which probably rattled. He was moving about four miles an hour and the train twenty miles — five times faster — upon converging lines, the train upon his left. An intervening hill so shut off his view of the approaching train that, assuming the respective lates of speed to be as above stated, we have no evidence that he could have seen it until he was within twenty-six feet of the crossing, at which point the head of the locomotive would have been 130 feet away and the whole train in sight. The evidence is that at fifty feet he could see down the track towards the approaching train, 142 feet, hut at fifty feet the train was 250 feet away and out of sight. At what point between fifty and twenty-six feet the train would come in sight of the plaintiff the evidence does not instruct us. At twenty-six feet he could see down the track so as to see a locomotive 320 feet or 170 feet beyond the locomotive. For twenty-six feet distance from the crossing to the crossing he could have had full view of the approaching train if he had looked over his left shoulder. At his rate of speed he would need between four and five seconds to go the twenty-six feet. There was no object in view which appears to have distracted his attention. It is highly probable that he did not look during that space of twenty-six feet, hut if he did, he must have seen the train. It is important to notice that, according to his testimony, his horses barely stepped one or two steps upon the track and stopped of *428their own accord, and then he for the first saw the locomotive just upon them.
Woodard v. New York, Lake Erie and Western Railroad Company (106 N. Y., 369) is the most recent case to which we are cited. In that case a man crossing six tracks on foot was struck in the back by a kicked car moving upon a switch track that crossed the other tracks. The negligence on the part of the company was clear. But the court said “ at any time when within ten or fifteen feet deceased had only to look and pause to be safe.” There had been, other cars moving in opposite directions which engaged the attention of the deceased; there was much noise from the moving of these cars and from the sounds of bells and whistles. A strong dissent was expressed by the minority of the court, in which these distractions were given prominent place. Such distractions are absent here.
The cases of Greany v. Long Lsland Railroad Company (101 N. Y., 419); Sherry v. The New York Central and Hudson River Railroad Company (104 id., 652), and Glushing v. Sharp (96 id., 676), were cases in which the persons crossing were charged by the respective defendants with negligence, because they did not look, or, looking, did not give heed.
In the Greany cáse there were two tracks across the street, one of which was blocked by a standing train. It seems that the plaintiff waited for it to move on, and as it began to move she stepped upon the track between the train and herself, but before the train passed off the street, she was struck by a fast train on the track upon which she stood, and which she obviously might have- seen if she had looked in time. But the court thought that the jury could excuse her, partly upon the ground that her attention was naturally engaged by the train which she was waiting, to have move out of her way. The factor of distraction or mistaken judgment, induced by the other operations or agencies of the railroad company, greatly aided the plaintiff in the Sherry case. In the Glushing case the gate was raised, and this was considered to be an invitation for the plaintiff to cross the track. In the case at bar the gates .were raised, but as they had never been used, the plaintiff does not claim to have trusted to them.
We incline to think in view of the Woodard case, and in the *429absence of any circumstance exculpatory of tbe plaintiff, sucb as existed in tbe other cases cited, that we must bold that tbe plaintiff was not free from contributory negbgence. He bad ample control of bis team and of bis own action, was not put off bis guard or distracted by any act of the defendant, could easily look, bad ample time to do it, and heedlessly exposed himself and property to injury.
Tbe judgment should be reversed and a new trial be granted, costs to abide tbe event..
Fish and Parker, JJ., concurred.Judgment reversed, new trial granted, costs to abide event.