William Walsh, as Administrator, etc., of Mary Walsh, Deceased, Appellant, v. Fonda, Johnstown and Gloversville Railroad Company, Respondent

William Walsh, as Administrator, etc., of Mary Walsh, Deceased, Appellant, v. Fonda, Johnstown and Gloversville Railroad Company, Respondent. Third Department, June 27, 1906. Negligence — vehicle struck by electric car at grade crossing — coik ' _ tributory negligence. The plaintiff’s intestate, while driving a buggy over a grade crossing in the country, was struck by an electric car. The buggy was equipped with a top and side curtains. It was shown that the intestate was driving at a slow walk, and by the plaintiff’s own evidence it developed that, considering the relative speed of the vehicle and the car, had the intestate looked she could have seen the approaching car before she drove upon the track. It appeared further that others heard the approaching car, and that the intestate’s senses were unimpaired. Held, that a nonsuit because of a failure to show freedom from contributory negligence was proper. Smith, J., dissented. Appeal by the plaintiff, William Walsh, as administrator, etc., of Mary Walsh, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 11th day of January, 1906, upon the dismissal of tlie complaint by direction of the court after a trial at the Montgomery Trial Term. The plaintiff’s intestate was killed by one of the defendant’s electric cars while she was attempting to cross the track of the defendant at a grade crossing. At the place of the accident the defendant operates a double-track electric railroad extending in an easterly and westerly direction and which is crossed at right angles by a highway. The deceased was driving southerly in a carriage and was killed by a car coming from the west on the southerly track. She was seated alone in the carriage with the top up and side curtains in place. The carriage was struck behind the forward wheel, the horse being entirely uninjured. The car was proceeding at the rate of thirty miles an hour and gave no warning signal of its approach until the moment of collision. The trial court dismissed the complaint because there was no evidence that the deceased was free from contributory negligence. James W. Verbeck, for the appellant. Charles S. Nisbet, for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: The place of the accident was a country highway crossing. The . apjiellant contends that the rule which obtains at street intersections within a city as to the relative rights of cars propelled by electricity and a person crossing its tracks should apply to the crossing in question and that the right of the deceased to use the crossing was equal to that of the defendant, and that she, therefore, may properly have assumed that tire motorman of the car would slacken the speed thereof and hence that she was not as a matter of law guilty of contributory negligence. It is unnecessary to consider the proposition thus presented because the evidence shows a failure on the part of the deceased to use due care to avoid the accident even if it be assumed that the defendant did not have the paramount right of way at the crossing. The highway over which the deceased approached the railroad led down a hill and through a cut or ravine which obscured her vision until she approached within some little distance of the track. But' the evidence is undisputed that when the horse’s forward feet were on the north rail of the north track the deceased, sitting in the carriage, could have seen a car approaching on the east-bound track at a distance of more than 541 feet. This was'proved by an experi- . ment made subsequent to the accident with the same horse, a similar wagon, and with the plaintiff himself seated therein. The plaintiff’s witness who made this experiment also testified: “ I timed with a stopwatch how long it would take this horse, which I was told by Walsh was the same horse that deceased drove, from the time the horse’s front feet was on the north rail of the west-bound track until the wheels of the wagon would clear the south rail of the east-bound track, the horse going with free rein on a walk. It took 9.2 seconds. If the car was going at the rate of thirty miles an hour it would take to run a distance of 585 feet about 13.3 seconds.” At this rate it would go 541 feet in about twelve and three-tenths seconds, so that before the horse reached the north rail of the north track the car was clearly within the range of vision of the deceased. Harry Hector, a witness for the plaintiff, testified that at the time of the accident lie was working in his garden, which was about 150 feet east of the defendant’s tracks and south of the highway; that he saw the deceased drive down the hill toward the crossing, holding a rein in each hand; that the horse was under control going on a walk; that a moment or two after she had passed the garden he started to go to the house for a drink of water and heard the car approach from the west, and wondered if she had crossed the track safely. He further testified : “ As I came back to the house for a drink of water the carriage was on the track. I should judge nearly between the two tracks ; she was moving. I observed no change in the gait of her horse from the time I first saw it until the collision. And that was a moderate walk. When I first saw the horse and buggy after I went to the house the top was up, the horse was moving, and the side curtains were on the wagon.' At that time I should think she was between the east and west-bound track, and the horse on the east-bound track.” This is the only evidence in the case as to the conduct of the deceased before the collision, and in connection with the circumstances surrounding the accident it shows a failure on her part to exercise proper care. Although the weather was threatening it was not storming. The hearing and sight of the deceased were normal, and she was a woman of at least ordinary intelligence. Hector, who was farther from, the approaching car than the deceased, heard its approach before the accident. As the deceased was driving slowly there is no reason to suppose that the noise of the carriage prevented her from hearing the car, inasmuch as Rector heard it at a greater distance. The. horse was gentle, and from the testimony of Rector there was no change in its gait after it got on the track in front of the approaching-car. That gait was the same “moderate walk” which the horse had when passing his garden 150 feet south of the crossing. The danger was then imminent, but the deceased did not urge the horse onward. The inference is irresistible that had she either looked or listened she would have been apprised of danger. Had she stopped before attempting to cross, or in attempting to make the crossing had she increased in a slight degree the speed of the horse, she would have escaped harm. She did absolutely nothing. She was apparently utterly oblivious of her surroundings and of the danger which threatened her. The case fails entirely to show her freedom from contributory negligence, irrespective of the question as to whether the rights of the defendant were paramount or only equal to those of the deceased. If their rights were equal, nevertheless the deceased was obligated to look out for her own safety, and in this she failed. (Lofsten v. Brooklyn Heights R. R. Co., 184 N. Y. 148; Thompson v. Metropolitan Street R. Co., 89 App. Div. 10; Lynch v. Third Avenue R. R. Co., 88 id. 604.) The judgment should be affirmed, with costs. All concurred, except Smith, J., dissenting. Judgment affirmed, with costs. Sie.