James L. Reynolds, Appellant, v. Larchmont Horse Railway Company, Respondent

James L. Reynolds, Appellant, v. Larchmont Horse Railway Company, Respondent. Negligence — injury to a wagon being driven on a street railroad trade from a cm• running into itjrom the rear— the failure of the driver of the wagon to look back is contributory negligence. In an action to recover damages for injuries resulting to the plaintiff’s horse and wagon in consequence of .one of the defendant’s street cars running into them from the rear, while they were being driven upon the railway track, the plaintiff’s driver testified that the wagon was covered and that the back of it was ■closed; that he had driven upon the track for a distance of a quarter of a mile without looking back, although he knew that cars were coming at regular intervals. The track was straight and he could see an eighth of a mile to the rear. There was nothing to prevent him from driving along the side of the track. He did not testify that he listened for the approach of a car or give any evidence of conditions or surroundings which might excuse his refraining from the ordinary exercise of his senses. Held, that the evidence established that the driver was guilty of contributory negligence, as a matter of law, and that the complaint was properly dismissed. Goodrich, P. J., and Hooker, J., dissented. Appeal by the plaintiff, James L. Reynolds, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Westchester County Court. J. Addison Young, for the appellant. Frederick W. Sherman, for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The authorities are so numerous and so uniform in support of the action of the learned County Court in dismissing this complaint that citation is needless. The action is for injuries to property caused by defendant’s alleged negligence in overtaking and running into the plaintiff’s horse and wagon while the latter were being driven upon the railroad track by the plaintiff’s servant. The driver was chargeable with contributory negligence as matter of law, inasmuch as no evidence was given establishing the contrary. The driver testified as follows: “ I had been driving on the tracks about a quarter oí a mile. The track is pretty straight along there, the road. If you look you cannot see the whole quarter of a mile because it is taken up by a small rise in the ground, a hill like. That rise in the ground was not a quarter of a mile behind me; not more than an eighth of a mile. I could see back to that hill. A young fellow was riding with me in the wagon. I do not remember that I was talking. It was a covered wagon. The back was down and closed. I drove along then without looking back at evil.” Whatever the witness may have meant by the statement that the “ back ” of the wagon was down and closed, the statement is clear and precise that he could see back to the hill on a straight track, but that he drove along without looking back at all, although he knew that cars were coming at regular intervals. He does not even testify that he listened for the approach of a car, or give any evidence of conditions or surroundings which might excuse refraining from the ordinary exercise of his senses, upon the ground that an endeavor to use them would be unavailing. There was no claim that he could not have driven at the time on the side of the road, and free from the track. His companion does not appear to have been examined as a witness. There was, accordingly, no evidence indicating the exercise of care or excusing its absence, and the dismissal was proper irrespective of the defendant’s alleged negligence. The judgment should be affirmed. Bartlett and Woodward, JJ., concurred; Goodrich, P. J., and Hooker, J., dissented. Judgment affirmed, with costs.