George E. Nash, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

George E. Nash, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued December 16, 1890; decided January 13, 1891.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made Febuary 11,1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. This was an action to recover damages for injuries received in a collision with one of defendant’s engines at a private crossing. It appeared that plaintiff lived on the east side of defendant’s road, which at that place runs north and south, and was familiar with the road and the running of trains; that defendant owned a strip of land seventy-nine feet wide on the east side of its road which was fenced on the east side; that in this fence there was a gate across a lane which led from plaintiff’s house across the railroad to the highway. In the afternoon of a clear day plaintiff drove to this gate, which was opened by his son, and he then drove down the lane on a walk until he reached level ground, thirty-five feet from the easterly track, when he allowed his horses to trot to and upon the track where an engine from the south struck the horses and fore part of the wagon, killing plaintiff’s wife, his horses, breaking the wagon and injuring him. Plaintiff knew that trains from the south ran upon the easterly track. At any point within twenty-five feet of said track he could have seen the train for half a mile. . Held, that plaintiff was chargeable with contributory negligence sufficient to debar a recovery, and that a submission of the question to the jury was error. Calvm Frost for appellant. Clarence R. Conger for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for reversal and new trial. All concur except Rugbb, Oh. J., and Andbews, J., dissenting. Judgment reversed.