
    Sophia A. Miller et al., as Administrators, etc., Resp’ts, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Negligence—Contributory.
    Where the person injured at a railroad crossing was guilty of contributory negligence, no recovery can be had, though no signal was given by the approaching train.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on tbe minutes of tbe court.
    
      Charles A. Pooley, for app’lt; M M. & F. M. Ashley, for resp’ts.
   Bradley, J.

The death of the plaintiffs’ intestate occurred at a highway crossing of the Rome, Watertown & Ogdensburgh Railroad, operated by the defendant, in June, 1892. He was riding in a wagon drawn by a pair of horses driven by him going east upon what is known as the “ Braley Road,” which crosses at right angles a highway known as the “Randolph Road,” in the town of Wilson, county of Niagara. His team went upon the track of the railroad, which crosses the intersection of the two roads in a northeasterly and southwesterly direction. His wagon was struck, and he was killed, by a train from the southwest. The accident took place about 6 o’clock in the afternoon, and the plaintiffs allege that it was occasioned solely by the negligence of the defendant. It appears that at a point 335 feet west of the crossing a willow hedge extended from the Braley road south to the railroad right of way, and on a line at the centre of the track 490 feet from the crossing, and that along east of the hedge was an orchard. The situation was then such that on passing the hedge going east on the Braley road the view of a train approaching from the southwest was shut off by it and the trees for some distance, so that when a point 95 feet from the centre of the crossing was reached an object on the track could be seen at the distance of only 497 feet, increasing to 665 feet when 77 feet from the crossing and to upwards of a mile when 63 feet from it. The train was running fast. The ringing post was 1,467 feet from the crossing. The train passed that without ringing the bell or blowing the whistle. The whistle, however, was sounded 500 or 600 feet from the crossing, described by witnesses as two short, sharp toots. No other signal of the approaching train was given. In view of the situation and circumstances, the conclusion was warranted that it was inadequate, and that by the omission to give a more suitable signal to warn persons on the highway leading to the crossing, of the approach of the train, the defendant was chargeable with negligence. But from that fact alone no inference arises that the deceased was free from contributory negligence, and to support the action the plaintiffs have the affirmative of that question, and the burden of showing that his negligence did not contribute to the calamity. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493. If, therefore, by the exercise of reasonable care he would have avoided the' collision and its consequences, the plaintiffs were not entitled to recover. What is reasonable care is dependent upon the circumstances as they existed at the time in question. When a person is suddenly placed in a position of danger by the negligence of another, which compels him to act suddenly to extricate himself, he may not be chargeable with negligence if he fails to avail himself of the very best means to accomplish it, and in consequence suffers an injury. Twomley v. C. P., etc., Railroad Co., 69 N. Y. 158; Dyer v. Erie Railway Co., 71 N. Y. 228; Salter v. Utica & B. R. Railroad Co., 88 N. Y. 42, It is urged on the part of the plaintiffs that the emergency when the approaching train came within the view of the intestate was such as to relieve him from the imputation of negligence. The facts are that when he had passed the willow hedge his horses proceeded on a trot, and when about 77 feet from the crossing the offside horse pranced, and as some of the evidence tended to prove, lunged ahead, while the other horse continued to trot. It quite satisfactorily appears from the evidence that when ’ that point in the highway was reached the train was in view, and the horses may have seen it before the deceased could, as he was about 17 feet in the rear of their-heads. But in a moment later it must have been seen by him if he looked in the direction from which it was approaching. There was then, so far as appears, up to the time the horses went upon 'the track, ample room to turn his team around, or to turn to the left into the Randall road on the west side of the railroad; and it is difficult to see why he did not do so, unless he failed to observe the train, or concluded that he could cross the track ahead of it. If, however, his horses became unmanageable,- or he lost control of them, and they in consequence, entered upon the track at the crossing against his will, he would not be responsible for it. Cosgrove v. N. Y. C. & H. R. Railroad Co., 87 N. Y. 88. It is urged by the plaintiffs’ counsel that the jury were permitted by the evidence to so find the fact. The court charged the jury that if Miller’s horses became unmanageable, and carried him upon the railroad track in spite of his efforts to prevent it, then the plaintiffs might recover if they also found that the defendant was negligent. The defendant’s counsel excepted. The evidence does not fairly justify such inference. It does not appear by the testimony of those who saw the deceased approaching the track that he made any attempt to turn his horses from it, and none of the witnesses were able to say that the team was beyond his control. The witnesses say that he* sat straight up in the wagon, looking ahead, holding the lines in his hands. One of the plaintiffs’ witnesses, who first saw the team when it was about 25 feet from the track, testified that the horses did not appear to be out of the control of the deceased; that one of them was then trotting. And another of them testified that Miller did not indicate by his actions any purpose to turn into the Randall road, although there was no reason why a person driving east on the Braley road could not have turned into it before getting to the railroad track. The view taken of the evidence is' that i't does not support the propositions so submitted to the jury, and that the exception was well taken. The fact that the train was in view of the plaintiffs’ intestate, or may have been seen by him, from the time lie was about four rods from the crossing, with ample room to turn from the track if he had chosen so to do, makes it appear that he may have misjudged the speed of the train, and thought he.could cross the track ahead of it. In view of the distance he was from the track when the train came in his view, and of the opportunity he had of avoiding the crossing by turning to the left, it does not seem.that the exigency was such as to excuse his going on the track in front of the train. The judgment and order should be reversed, and a new trial granted ; gosts to abide the event.

All concur.  