
    Bridget Larkin, Resp’t, v. The New York & Northern Railroad Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Railboad—Negligence—Trespass.
    Where the public has for a long time, constantly and notoriously, with the acquiescence of the railroad company, been in the habit of approaching its track by a certain trodden path, a person using such path is not a trespasser, and the coihpany is under an obligation to exercise reasonable care to protect such person from injury.
    .2. Same.
    Whether the company knew of such use and assented thereto is a question for the jury.
    3. Same—Contributory.
    Where plaintiff testified that she looked and listened and did not see or hear the engine, and it appeared that the view was obstructed by the station and a curve; that no whistle was blown or bell sounded, and the engine approached slowly, Held, that the question of contributory negligence was properly submitted to the jury, and their verdict should not be disturbed.
    ■á.- Same—Damages.
    Where plaintiff was a woman sixty-four years old, and a good worker, and was injured in the head, lost three toes, suffered great pain, was seven weeks in hospital and has earned nothing since, Held, that a verdict for $3,500 was not excessive.
    Appeal from judgment on trial by jury and from order denying new trial.
    Action for injuries caused-by collision of.defendant’s engine with plaintiff at a crossing.
    
      Sherman Evarts, for app’lt; Stewart & Macklin, for resp’t.
   Pryor, J.

The learned counsel for the appellant argues that the plaintiff was, at most, a mere licensee, if not in fact a trespasser, when she suffered the hurt, and that, therefore, the appellant owed her no other duty than to abstain from doing her wilful ■or wanton injury.

Upon the evidence the jury were warranted in the conclusion that for a long period of time the public had constantly and notoriously, and with defendant’s acquiescence, been in the habit of approaching its track by the “ trodden path ” which plaintiff took, .and if so, then plaintiff was not a trespasser, and defendant was under an obligation to exercise reasonable care to protect her from injury.” Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 362; 5 St. Rep., 722; Swift v. R. R. Co., 123 N. Y., 645; 33 St. Rep., 604. Under the circumstances the fact that the plaintiff was an adult is material only in determining the degree of care which, the law exacted of her, and is of no relevancy to the question whether she was a trespasser. And no particular extent of notoriety or definite period of time in the use of an irregular approach to the track is prescribed by the authorities; but the essential fact is, the acquiesenee of the company in conduct which but for such acquiesenee would constitute a trespass. Whether the defendant knew of the habitual use by the public of the footpath pursued by the plaintiff, and assented, to such use, were questions for solution by the jury; and we cannot say that their decision is so clearly contrary to the evidence that it must not be"suffered to stand.

Again, appellant insists that the evidence was insufficient to authorize an inference of its negligence and of the plaintiff’s notinegligence; and that, hence, there was error in the refusal to dismiss the complaint

If, as matter of law, the defendant was not obliged to ring the bell or blow the whistle in approaching the crossing, still it was bound to use reasonable care in so approaching; and.whether defendant observed the precautions required by such care was a. question of fact for the jury. Swift v. R. R. Co., supra. All the circumstances of the situation, including the absence of a flagman, were facts for their consideration in ascertaining the negligence of the defendant. Reid v. R. R. Co., 44 St. Rep., 688. In a charge so clear and impartial that in it the vigilance of counsel could discover no ground of exception, the learned trial judge submitted the question of the defendant’s negligence to the jury; and we cannot affirm of their finding that it is contrary to the decisive weight of evidence; still less^that it was without adequate support-in the evidence.

So, too, upon the question of plaintiff’s contributory negligence; the testimony was so contradictory and the circumstances susceptible of such a diversity of inferences, that the learned trial judge did well to refer the evidence to the jury. Kain v. Smith, 89 N. Y., 375, 384; Stackus v. R. R. Co., 79 id., 464; Hart v. Bridge Co., 80 id., 622.

Appellant’s counsel ingeniously argues that the circumstances admit of no other inference than plaintiff’s negligence; that the approach of the engine was so imminent and obvious that had she looked she could not have failed to see it. But her positive-testimony that, although she looked and listened, she did not see or hear the engine, is not incredible in connection with the circumstances ; the obstruction of view by the station and curve; the omission to blow the whistle or sound bell, and the slow, not to say stealthy, approach of the engine. Counsel’s conclusion from the evidence is: that not only was the whistle blown and the bell rung, but “ that plaintiff paid no attention to them whatever, walking deliberately into the corner of the engine.” As there-was no proof of plaintiff’s intoxication, insanity, or suicidal propensity, we can hardly wonder if the jury failed to appreciate the force of this argument.

Plaintiff was sixty-lour years old, in strong health, a good worker, and earned a dollar ánd a quarter a day. By the injury .she was hurt in the head; lost three toes; suffered great pain, and •still suffers; was seven weeks in the hospital; has not earned a ■dollar since. For these consequences of defendant’s negligence, we are of opinion that a verdict of $3,500 is not so exorbitant .as to imply on the part of the jury passion, partiality or a mistaken view of the evidence.

Judgment and order affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.  