
    Argello Orafina, as Administrator, etc., of Congetta Orafina, Deceased, Respondent, v. New York State Railways, Appellant.
    Fourth Department,
    December 29, 1911.
    Railroad — negligence — speed of interurban trolley car — death of child at grade crossing.
    A trolley company, operating a fast suburban train service between two cities forty-five miles apart over its own right of way, is not negligent merely because it runs its cars at the rate of forty-five miles an hour on a straight track over a highway crossing in a sparsely-settled country district, where the view both ways is unobstructed for over 1,500 feet, nor is it obliged to run at such, speed as to be able to stop its cars within a comparately few feet. Under such circumstances it is charged with no greater degree of:care than a steam railroad company would be.
    
      Hence, such railroad company is not liable, on the sole ground of excessive speed, for the death of a child who was struck at such a crossing, where the whistle was sounded.when the car was 1,000 feet from the crossing, and whistle and gong sounded again as soon as the child, was seen.
    Appeal by the defendant, the New York State Railways, from a judgment of the Supreme Court in favor of the plaim tiff, entered in the office of the clerk of the county of Ontario ' on the 21st day of "March, 1911, upon the verdict' of a jury for $900, and also from an order-entered in. said clerk’s office on the 30t'h day of March, 1911, denying* the defendant’s motion for judgment on the verdict and the special findings therein contained; also from a second order entered on the 14th day of April, 1911, denying the defendant’s motion for the same relief, and also from an order entered on the -28th day of Marchy 1911, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 30th day.of July, 1910,. to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence.
    
      Frank Rice, for the appellant.
    
      Salvatore M. Vella, for the respondent.
   McLennan, P. J.:

Plaintiff’s intestate, a child four‘.years and four months of . age, was struck and almost mst-antiy killed by one of defendant’s cars at about one-thirty p.' hr. ón May 10, 1910, at a highway crossing in the town of Victor, Ontario county.

The defendant owned and operated a suburban electric railroad, extending from Geneva, tg Rochester, a distance of. about forty-five miles, passing through-Victor and Canandaigua.

The crossing, in question is 1,91b feet along the highway from the east corporation line of Victor, :and 1,492 feet along defendant’s* tracks from the east corporation, line. Victor is an incorporated village of 881 inhabitants; 1. V*'

At the crossing the railroad runs nearly ¡east and west and the highway nearly north and south. The parents of the deceased occupied a house on the highway about 245 feet south of the crossing. Between this house and the railroad track is another house 150 feet distant from the track, and the only-other house in sight to the south is more than 1,000 feet from the track. On the north side of the track there is but one house on the highway between the crossing and the east corporation line. The defendant’s track is perfectly straight for more than 1,500 feet in each direction from the crossing, and nothing obstructs the view except the trolley poles and the wing fences at the crossing. The day of the accident was a bright, clear day.

Shortly before the accident the intestate was in the yárd at her home, with her mother and other children, and in some manner, unnoticed by her mother, the child made her way to the crossing, and, with a short stick in her hand, was playing about the tracks when defendant’s car came in sight. The car was traveling west at the rate of about forty-five miles per hour, and the motorman, after he saw the child upon or near the track, was unable to stop the car before hitting the child, and ran some sixty-five feet beyond the crossing before stopping the car.

o

The trial court submitted to the jury five questions to be answered, as follows:

1. Did the motorman use reasonable care and diligence in discovering the child and stopping the car ?
2. Was the car running at a reckless and dangerous speed as it approached the crossing ?
3. Was it running at such speed as to be beyond reasonable control in approaching such crossing ?
4. Was the defendant negligent ?
5. Was the plaintiff negligent?

To the submission of all these questions, except the first, defendant’s counsel excepted. The jury answered “Yes” to each of the first four questions and “No” to the fifth, and found for the plaintiff in the sum of $900.

It will thus be seen that the question of defendant’s negligence in failing to discover the child on the track, or in failing to bring the car to a stop after discovering her, is not before us, as the jury have determined that question in defendant’s favor. It, therefore, becomes important principally to determine whether negligence on the part of the defendant can be precheated solely on the alleged excessive and reckless speed of the car.

The car traveled over defendant’s own private right of way in this locality, and it is uncontradicted that the raotorman sounded the whistle -at about 1,000 feet-east of the crossing. As soon as he .saw the child the whistle was again blown •and the gong sounded, and no question is raised as to the sufficiency of these warnings.

Defendant’s counsel requested the court to charge “ that if the jury find that the defendant gave a proper .signal, either by ringing the bell or blowing the whistle, on approaching this crossing, sufficient to warn travelers in the highway, they cannot find ¡a verdict against the defendant predicated solely on the speed .at which this train was going as it passed this crossing/” 'To which the court replied: That would be absolutely true as to a railroad, train.' T decline to charge differently than I have charged, however, in this case.” The court had.previously charged as follows on this point: 'a I submit to you, also, the speed at which the car was running, and whether it was a .dangerous and reckless rate of speed ha. approaching such a crossing as this, and was it snch a rate of speed as put the car beyond the control of the operator, using fair effort to bring it . in hand before reaching the crossing ? ” To the submission of this .question and to the refusal to charge as requested defendant duly excepted.

h We think the court erred in submitting this question to the jury and in refusing to charge as requested by- defendant’s. counsel as above stated. The defendant was operating a fast suburban train service between two cities forty-five miles apart, over its own right of way for most of the distance. Its cars running at frequent intervals are of great accommodation to the traveling public. But its efficiency and usefulness would he greatly impaired if it were obliged to run its cars on approaching each country highway crossing at such rate of speed as to be able to stop them within a comparatively few feet. Under such conditions, it could not successfully compete with steam trains nor render satisfactory service to the public. We think that under the facts in this case the defendant was bound to exercise no greater degree of care than would be imposed upon a railroad company operating a train propelled by steam under like circumstances. The car was properly equipped with brakes, .the motorman gave sufficient warning on approaching the crossing, used reasonable diligence in discovering the child .and in attempting to stop the car after discovering it. Under these circumstances the defendant was guilty of no negligence. (Kozlowski v. Rochester, S. & E. R. R. Co., 142 App. Div. 245.)

Some evidence was offered tending to show that the defendant was negligent in maintaining at this crossing wing fences of such construction as to obstruct the view of the motorman and prevent his seeing the child near the tracks in time to bring his car under' control. The evidence and the photographs submitted as exhibits show that the wing fences in question were of the kind ordinarily built at highways by nearly all railroads. Section 32 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 616), which is now section 52 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), required the defendant to maintain fences and cattle guards at highway crossings. We think the evidence did not warrant the submission to the jury of the question of defendant’s negligence in this respect.

Having reached. this conclusion it becomes unnecessary to consider the question of contributory negligence.

For the errors stated the -judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event-.

All concurred; Robson, J., not sitting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  