
    Philip Cohn, as Administrator, etc., of Millie Cohn, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — evidence of an'accident at the seme railroad crossing eight yea/rs before is inadmissible — negligence cannot be imputed from the absence-of a flagman or of ■
    
    Where an action is brought to recover damages resulting from the death of a child caused by the alleged negligence of the defendant, it is improper to allow a witness to state that he was-injured at the same crossing eight years before. ,-
    Such evidence,, though competent in -certain cases, to show that either a place or ■ an appliance was dangerous, is not proper to show:
    1st. That many accidents have happened at a crossing, as the railroad company has a legal right to maintain its railroad at such crossing; or,
    2d. That a corporation was negligent in its manner of running, a train upon a former occasion, as it does hot tend to. prove that it was guilty of negligence at the time of the accident in question.
    Evidence of an accident which occurred eight years ago is too remote, and-is also objectionable, where, as in the present case, it appears that the child was killed while approaching the crossing from the west,, while fhe witness in question was injured when approaching it from the east.
    A railroad corporation is entitled to a charge that no negligence can be imputed to it from the absence, of a flagman; or from its. failure to maintain gates at a . crossing. •'
    
      It is not enough that the court, while denying a request for such a charge, states to the jury that there is no statutory obligation requiring a railroad corporation to maintain these safeguards.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of March, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 31st day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ira A. Place, for the appellant.
    
      William P. Fiero, for the respondent.
   Cullen, J.:

The plaintiff’s intestate, a girl, nine years old, was killed at a highway crossing upon defendant’s railroad, by being struck by a locomotive. We shall not pass upon the proposition asserted by the defendant, that on the evidence it was entitled to a dismissal of the complaint, because, in the view most favorable to it, the case was certainly a close one, and the facts may be varied on another trial, which must be had, as in our opinion, two serious errors, prejudicial to the defendant, were committed on the trial.

Over the defendant’s objection and exception, a witness was allowed to testify to the occurrence of an accident to himself at the crossing, which occurred some eight years prior to that to the plaintiff’s intestate. There are two classes of cases in which such evidence is admissible : In the first, as to the condition of a place, or to the working of an appliance to show that either was dangerous; in the second, to show notice to the person who ’had control of the place or appliance. It is doubtless competent to show that horses or persons frequently caught their feet at a crossing, or continually slipped on a sidewalk, to show that the crossing or sidewalk was in a dangerous condition. But the principle upon which such evidence is admitted in that class of cases has no application to the case at bar. In the cases taken as examples, evidence of the. character stated would constitute evidence of the defendant’s negligence, for it would be negligence to maintain a crossing or sidewalk in such condition as to endanger persons passing over it. But in the case at ■bar, 'while the occurrence of many accidents at the crossing might tend to prove the danger of the crossing, it would not tend to prove the negligence of the defendant, because the defendant has the legal right to maintain’ its railroad at the place "in question, though dangerous. Negligence could be predicated only of the manner in which the defendant ran its trains over the crossing. Of course,- this- was a thing that constantly varied, and evidence that the train was run carelessly on one occasion would not be evidence that it was so run ' on another occasion. • There are two further valid objections to this testimony: First, the occurrence was too remote; second, the accident happened to the witness as he was crossing the railroad from east to west, while the plaintiff’s intestate was killed in crossing from west to east. The danger in approaching the track from one direction was no evidence of the danger in approaching it from an. opposite direction.

The court was requested to -charge that no negligence could be imputed to the defendant from the absence of a flagman or a failure to maintain gates at the crossing. This request the court refused, although it did charge that there was no statutory obligation to maintain gates or provide a flagman. The charge of the court did not go far enough, and the defendant was entitled to have the legal propositions charged as requested. As left by the court on its refusal to charge, and as is to be gathered from the whole tenor of the charge, the jury was instructed that, though there was no statu tory obligation in these respects, still they might find, as a matter of fact, that the defendant had been negligent in failing to provide these safeguards. The law is settled that the defendant cannot be charged with negligence, in failing to maintain gates or to provide flagmen, in the absence of legal obligation to provide them. It was so declared by the learned trial justice himself in Case v. N. Y. C. & H. R. R. R. Co. (57 N. Y. St. Repr. 653; S. C., 75 Hun, 527). (See the cases cited in that opinion.)

For these errors the judgment must be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment' and order reversed and new trial granted, costs to abide", the event. . -  