John O. Carr, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

John O. Carr, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued February 17, 1875; decided February 26, 1875.) This was an action to recover damages for injuries received at a highway crossing on defendant’s road. The only question upon the appeal was, as to .whether plaintiff was chargeable with contributory negligence. There was a double track at the crossing; plaintiff approached from the south after dark; his testimony tended to show due care as he approached. W hen he came within two or three rods of the crossing he observed a locomotive head-light at the east, but could not tell whether it was stationary or in motion. He stopped and ascertained it was moving toward the crossing. He moved up within twenty feet of the track and then stopped again for the train to pass. He looked west, from where he stopped, but his view was obstructed by buildings so that he could not see the track. When the train had nearly passed he started up; looked west, when near the track, but saw nothing; but, just as his horse got upon the track, the head-light of a train approaching rapidly from the west, and then about ten feet distant, flashed upon him, and the engine, almost immediately, struck the horse and inflicted the injury. He Id, that this evidence showed no want of proper care; and although, from plaintiff’s subsequent cross-examination, and from other testimony, it was doubtful whether he exercised due diligence in looking west, after starting up to pass the crossing, yet it presented a proper question for the jury; and a denial of a motion for a nonsuit wras not error. D. Pratt for the appellant. H. V. Howland for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.