#### ALLEN et al. v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Railroad Companies—Accidents at Crossings.

In an action for the killing of plaintiff’s intestate at a crossing, it appeared that deceased was 72 years of age, and familiar with the running of defendant’s trains. The country was level, and the view of the track from the road was unobstructed for many rods before reaching the crossing. Deceased was in a top buggy with side curtains on, and apparently paid no heed to an approaching regular passenger train, but drove near defendant’s crossing, and the horse, becoming unmanageable, rushed in front of the train, *¿eld,*that deceased was chargeable with negligence.

Action by Christina L. Allen and George W. Henderson; administrators of the estate of Jonah E. Allen, deceased, against the New York Central & Hudson River Railroad Company, to recover damages for the killing of plaintiffs’ intestate. Plaintiffs were non-suited, and move for a new trial on exceptions ordered to be heard at general term in the first instance.

Denied.

Argued before LEWIS and BRADLEY, JJ.

Whedon & Ryan, for plaintiffs.

Charles A. Pooley, for defendant.

LEWIS, J.

This action is to recover damages for the killing of' the plaintiffs’ intestate at a highway crossing of the defendant’s road near Medina, Orleans county. The deceased was a farmer, 72 years of age, and had resided in the neighborhood of this crossing for 21 years; was familiar with the crossing, and the running of the defendant’s trains. On the 30th day of October, 1892, he was returning home from the village of Medina, in the daytime, and drove along a highway running at right angles with the defendant’s railroad track, about one mile west of the village of Medina.. He was in a top buggy, drawn by one horse. He approached the crossing from the north, upon a slow trot, and as he arrived near to the railroad track his horse became frightened and unmanageable, *625caused by the sharp whistle of an engine of the defendant, which was approaching the crossing from the east, with a train of passenger cars. The horse probably saw the approaching train, which added to his fright. The horse, despite the efforts of the deceased to stop him, ran across the railroad track. The buggy was struck as it was crossing the track, by the engine, and the plaintiffs’ intestate was instantly killed.

There was evidence tending to show negligence on the part of the defendant in that no signal was given of the approaching train until it arrived within a few rods of the crossing, when the whistle of the engine was sharply and loudly blown. The railroad crosses the highway at grade, and the surface of the land in the vicinity of the crossing is level. There was nothing to obstruct the view of the approaching train by the deceased as he rode along the highway from the north for a distance of 50 or 60 rods from the crossing. The undisputed evidence was that, had the deceased at any time while driving that distance looked towards the approaching train, he could have seen it for a distance of at least half a mile east of the highway crossing. There was an absence of any evidence tending to show that the deceased looked during that time to see if the train was approaching. There was affirmative evidence that for a portion of that distance he did not make any observation to discover if the train was coming. There were side curtains upon the buggy. They were down, and the top was up. The deceased was sitting upon the seat of the buggy, and in order to look to the' east he would have been obliged to incline his body considerably forward. This he does not seem to have done, but drove along towards the track without apparently paying any heed or attention to the approaching train. There was evidence tending to show that the rumbling of the train as it moved over the track could be heard as it left the village of Medina, and all along to the crossing, by a person upon the highway. It was a clear, pleasant day. The-evidence shows that there were four or five small trees on the easterly side of the highway, but they did not, at that season of the-year, obstruct materially the view to the east from the highway. It was unquestionable negligence on the part of the deceased to drive-his horse, as the evidence shows he did, to within from two to four rods of the crossing without looking to see if a train were approaching from the east. It was a passenger train, which left Medina daily at about the time it did the day in question, so that we must assume that the deceased knew that a train might be expected to arrive at the crossing at about that time. The trial court, upon .these facts; held that the plaintiff had failed to show that the deceased was free from negligence contributing to his death, and hence directed a nonsuit. We think the direction was clearly right.

The plaintiffs’ motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.