#### Antonio Lopes, Respondent, *v.*George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant.

First Department,

June 4, 1915.

Railroad — negligence—injury by being thrown from wagon struck by car at crossing — contributory negligence — plaintiff chargeable with negligence of driver.

In an action to recover for personal injuries sustained by being thrown from a wagon, which weighed together with the load about eight tons, and was drawn by one horse driven by the plaintiff’s father who sat beside him on the front seat, it appeared that when they were about to cross the defendant’s track the plaintiff saw the defendant’s car about a block away coming “pretty fast;” that, without halting or changing their course, they continued; that just as they were “ about to get on the track ” plaintiff looked again and saw the car about the distance of “ three pillars ” of the elevated road away, and plaintiff then told his father “to go ahead;” that plaintiff again looked when the car was about 125 feet away, its speed apparently unchanged; that at this time the horse or some part of the wagon was on the track and plaintiff told his father “to whip the horse, that the car was coming,” and that the “ back part ” of the wagon was struck by the defendant’s car.

*Held,*that the plaintiff was guilty of contributory negligence, and that a judgment in his favor should be reversed and the complaint dismissed; that the plaintiff was chargeable with the negligence of his father.

Dowling, J., dissented.

Appeal by the defendant, George W. Linch, as receiver, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1914, upon the verdict of a jury for §3,500, and also from an order entered in said clerk’s office on the 31st day of December, 1914, denying the defendant’s motion for a new trial made upon the minutes.

*Charles H. Tuttle [Harold R. Medina*with him on the brief], for the appellant.

*Moses Feltenstein,*for the respondent.

Hotchkiss, J.:

Plaintiff, while attempting to cross the tracks of defendant’s road, was injured by being thrown from a wagon which was *42struck and overturned by one of the defendant’s cars. The wagon, which was drawn by one horse and was of the closed type, was loaded with barrels and other receptacles filled with vegetables, and according to plaintiff’s estimate weighed altogether about eight tons. The plaintiff was sitting on the seat in front, beside his father who was driving. The wagon was going north on the east side of Second avenue, on which there are two lines of track, one running north and the other south. When at about Thirty-sixth street, where it was their intention to cross, the direction of the wagon having already been turned to the west, according to plaintiff’s testimony, both he and his father looked to see if the road was clear, and plaintiff saw the car a little to the north of Thirty-fifth street coming “pretty fast.” Without halting or changing the course of the wagon which continued on its way, and just as it was “ about to get on the track ” plaintiff looked again and saw the car about the distance of “three pillars ” of the elevated road away,' and plaintiff then told his father “ to go ahead. ” Plaintiff again looked when the car was 125 feet away, its speed apparently unchanged. At this time the horse or some part of the wagon was on the track, and plaintiff told his father “to whip the horse, that the car was coming.” Thus urged, the horse “tried all he could, with the heavy load he had,” and had succeeded in drawing all but the “back part” of the wagon clear of the track when it was struck.

On this state of facts the case cannot be distinguished from a number of cases where recovery has been denied on the ground of plaintiff’s contributory negligence. *(Netterfield*v. *N. Y. City R. Co.,*129 App. Div. 56; *Litzour*v. *N. Y. City R. Co.,*116 id. 411; *Clancy*v. *Troy & Lansingburgh R. R. Co.,*88 Hun, 496.) The court charged that the contributory negligence, if any, of the plaintiff’s father, who drove the wagon, was not attributable to plaintiff. The plaintiff not only was fully aware of the danger to be 'apprehended from the approaching car, but was an active participant in directing the movements of the wagon. Under these circumstances he is chargeable with the negligence of his father. *(Brickell*v. *N. Y. C. & H. R. R. R. Co.,*120 N. Y. 290; *Donnelly*v. *Brooklyn City R. R. Co.,*109 id. 16, 22.)

*43The judgment should be reversed, with costs, the complaint dismissed, with costs, and the finding that the plaintiff was free from contributory negligence reversed.

Ingraham, P. J., Clarke and Scott, JJ., concurred; Dowling, J., dissented..

Judgment and order reversed, with costs, and complaint dismissed, with costs.