Judgment was entered in the Supreme Court,
Per Curiam.— The evidence in this case discloses either gross carelessness or recklessness, in the approach of Peter Grerety to the railroad and his attempt to cross it in front of the coming train. He walked his horses slowly up the gentle assent to the railroad, looking at them and turning to look neither to the right nor left. The track lay here on an embankment of about twelve feet in height, and the train could have been seen approaching for many hundred feet. The engineer, called by the plaintiff, testifies he saw the man and wagon about ninety feet off, he was going up slowly, and standing up in his wagon behind the seat. He came within a few feet of the track, and then, the train being near at hand, lashed his horses with the reins to force them across the track. Wagon, horses and man were caught, the wagon smashed, a horse and the man killed. This was all done with a train in full sight and in broad daylight. Standing up in his wagon he could see all around, and he therefore did not look to see, or with the most culpable recklessness he rushed on to his end.
Admit the possibility of his not hearing the train, and when he found himself almost at the road he lashed his horses to cross quickly, yet it was a culpable act to attempt to cross almost in front of a train moving with such celerity, about twenty-five miles an hour. We are unable to see anything to excuse him, and therefore the court was justified in nonsuiting the plaintiff, for the contributory negligence of the deceased. Judgment affirmed.