Powell v. New York Central & Hudson River Railroad

14 N.Y. St. Rep. 74

Opinion

Per Curiam.

—The plaintiff was bound to establish his own freedom from negligence contributing to the accident causing the injury of which he complains. In this we think he failed, and therefore he was properly non-suited.

According to his own evidence, which was more favorable to him than the evidence of the other witnesses, he approached and crossed the railroad tracks at the rate of about ten miles per hour, while a strong wind was blowing from the west, and it was snowing very fast, and his opportunity to see and hear was thus considerably interfered with. He knew that he was approaching a place of danger, and that trains were frequently passing at that place. He should have driven slowly and carefully, watching for the approach of trains, vigilantly using his eyes and ears to protect himself from danger. If he had observed these_ precautions, under the circumstances dictated by ordinary prudence, we think he would have escaped harm.

The judgment should, therefore, be affirmed.

All concur, except Daneorth, J., who reads for reversal, and Andrews, J., concurs.