
    ROBISON v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, Third Department.
    November 11, 1908.)
    Railroads (§ 350*)—Accidents at Crossings—Actions—Question for Jury-Contributory Negligence.
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Whether plaintiff, in passing a railroad crossing embracing nine tracks, upon the fourth of which stood a line of cars obstructing the view, was negligent in failing to see an approaching engine on the eighth track, after he had passed the cars, and to stop his team before he reached the sixth track, where they became unmanageable, held to be for the jury.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1169-1176; Dec. Dig. § 350. *J
    Appeal from Trial Term, Schenectady County.
    Action by Tully M. Robison against the New York Central & Hudson River Railroad Company. Judgment of nonsuit, and plaintiff appeals.
    Reversed, and new trial granted.
    Argued before SMITH, P. J„ and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
    W. W. Wemple, for appellant.
    Angle & Strong (Homer Strong, of counsel), for respondent.
   COCHRANE, J.

As plaintiff was crossing defendant’s tracks with a sleigh and team of horses owned and driven by himself, an engine of the defendant collided with the sleigh and injured plaintiff. He was traveling on a public highway which crossed the railroad at grade. There is evidence that no signal was given of the approach of the engine. The negligence of defendant was clearly established. Plaintiff was nonsuited because of contributory negligence on his part.

Nine tracks of the defendant crossed the highway at the place of the_ accident. The collision occurred on the eighth track from where plaintiff approached the crossing. On the fourth track was a row of box cars, one of which projected for half of its length across the highway. Between the fourth and fifth tracks was a distance of about 25 feet. The box cars obstructed plaintiff’s view of the approaching engine until he crossed the track on which they were standing. According to his testimony he approached the crossing looking and listening. His horses' were trotting at the rate of about 10 miles an hour. They shied around the projecting box car. The road was slippery, and the horses smooth shod. He guided them bade into the highway. When on the sixth track he saw for the first time the engine approaching. His horses then became uncontrollable, and, although assisted by his son, who was riding with him, he was unable to stop them before the collision occurred. It was also established that a flagman ordinarily on duty at this crossing was absent, and plaintiff testifies that he looked for him and observed his absence before crossing any of the tracks.

It -is doubtless true that under ordinary circumstances it would have been the duty of the plaintiff, after passing the obstructing box cars, to look for approaching trains, and to have stopped before reaching the sixth track, where he says he was when he first saw the approaching engine; and it is also true that this engine was within his view immediately after he passed the box cars. But some consideration must be given to the facts that his horses, although under, his control, were restive because of the box car and were slipping. Naturally to a certain extent these facts engrossed his attention. Of greater significance was the absence of the flagman, which circumstance tended to throw plaintiff off his guard and to allay apprehension of danger. He says he looked for this flagman 100 feet before reaching the crossing, and again after passing the box car. There is no pretense that the latter was attentive to his duty, although it was his duty, to the knowledge of plaintiff, to guard this crossing. We cannot say as matter of law that, under the circumstances here existing, it was the duty of plaintiff, after he passed the box car, to see the engine and stop his horses before reaching the sixth track, where they became unmanageable. Plaintiff, having been nonsuited, is entitled on this appeal to the most favorable inferences properly deducible from the evidence. The jury, on the foregoing facts, might have exonerated him from the imputation of negligence, and should have been given the opportunity to do so.

The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  