
    Thomas S. Quinn, Adm'r, vs. N. Y., N. H. & H. R. R. Co. Michael Czerwisk vs. N. Y., N. H. & H. R. R. Co. Edward Czerwiski, p. a., vs. N. Y., N. H. & H. R. R. Co.
    No. 76325.
    No. 76612.
    No. 76611.
    September 28, 1929.
    For plaintiff: Quinn, Kernan & Quinn.
    For defendant: E. J. Phillips and E. J. McElroy.
   TANNER, J.

This is an action on the ease for negligence and is heard upon the defendant’s demurrer to the third count of the amended declaration.

Said third count merely alleges that the defendant negligently and improperly failed to maintain at a grade crossing any gate, flagman, electric signal or any other device whereby to warn travellers upon said public and common highway of the approach of said electric trains.

We think the law is well established that at common law it was not negligence merely to fail to maintain a flagman at a crossing. Said failure, however, may be shown at trial in connection with other circumstances to establish negligence. For instance, it may be shown that' there was an obstructed view; that there were noises which would prevent a traveller from hearing an approaching train; that the speed of the train was excessive, or that the grade crossing was in a thickly settled part of the community and was used by large numbers of people in crossing.

Inasmuch as the count of the amended declaration demurred to states no other circumstance than the failure to maintain a flagman or give warning by other device, we think the count is defective and the demurrer thereto is sustained.  