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 *190caused 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.