Opinion
March 5, 1909.
Francis R. Stoddard, Jr., for the appellant.
Harry C. Underhill, for the respondent.
The defendant's tracks cross Prospect street in the borough of Queens at grade. The plaintiff was driving a horse, hitched to a covered milk wagon, along Prospect street, and, on attempting to cross said tracks, was struck by one of the defendant's trains consisting of a motor and three or four passenger cars. The horse was killed. The plaintiff testified that he stopped in the middle of the block before reaching the defendant's tracks and looked and listened for a train. Not hearing or seeing anything he then proceeded to drive on a walk to where the accident occurred, without, so far as appears, paying any further heed to discover the approach of a train. There is evidence tending to show that no signal was given of the approach of the train, and that at some places the plaintiff's view of the track in the direction from which the train came was obstructed by buildings, but it does not appear precisely where and to what extent the view was thus obstructed, nor does it appear whether it was obstructed at the place where the plaintiff says he stopped and looked.
The burden was on the plaintiff affirmatively to show the exercise of due care on his own part. Proof that he looked in the middle of the block before reaching the crossing, and then proceeded without taking further heed fails to satisfy this rule. If the view of the track was obscured at some places he was required to exercise greater care to see at other places. If the view was obscured at all points, he had to listen more intently. It does not suffice that the plaintiff looked and listened at a given point. He should have looked to see. The plaintiff was familiar with that crossing.
The judgment is reversed.
WOODWARD, JENKS, GAYNOR and RICH, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.