
    Mary Lortz, as Administratrix, etc., of Frederick Lortz, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—a person with impaired sight crossing railroad tracks while there is smoke upon them from another train which has just passed —failure of the railroad company to give signals — right of a blind man to be on a public highway.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the intestate, who was sixty-two years old, was very near-sighted and that his vision was in many ways seriously impaired. At the time of the accident in question, between daylight and dark of a cloudy and misty day, he approached a railroad crossing aoout the time that an express train passed upon the second track in front of him. This train threw down upon the track a heavy cloud of black smoke. The intestate, while the train passed, looked east and west, and then went upon the track nearest to him, when he was struck by an express train which was running at the rate of from thirty-five to forty miles an hour.
    Several witnesses, who were observing whether it was done, testified positively that no bell was rung nor whistle blown.
    
      Held, that there was sufficient evidence of the negligence of the defendant to make that question a proper one for the jury;
    That the deceased was not shown to have been guilty of contributory negligence, as a matter of law;
    That while the deceased was required to exercise reasonable care under the circumstances and in view of his infirmities, his impaired vision, and even blindness, did not prohibit him from traveling upon a highway by day or night.
    
      Appeal "by the defendant, The New York Central and Hudson River Railroad Company, from an. order of the Supreme Court, made at the Genesee Circuit and entered in the office of the clerk of the county of Genesee on the 27th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes, after a trial at the Genesee Circuit, in which the jury rendered a verdict for the plaintiff for $1,800 in an action for the negligent killing of Frederick Lortz, the plaintiff’s intestate, at a highway crossing of the defendant’s railroad, in Batavia, N. Y.
    
      Albert H. Harris, for the appellant.
    
      William C. Watson, for the respondent.
   Ward, J.:

Frederick Lortz, the deceased, who was sixty-two years of age at the time of his death, lived on the east side of Cedar street, in the village of Batavia, just north of the defendant’s tracks. For a year previous to his death lie had worked for the wood working company, whose establishment was on Cedar street, south of the tracks, and he passed over the tracks daily in going and- returning from his work.

Cedar street is in the outskirts of the village of Batavia. There were four railroad tracks at the intersection of Cedar street, Nos. 1, 2, 3 and 4. The south railroad track was No. 1. No. 1 was for east-bound passenger trains, No. 2 for-west-bound passenger trains and the other two tracks were used for freight trains.

Between six and seven o’clock in the evening of April 16, 1889, the deceased was walking to his home from the shops where he was employed, along the side of Cedar street, which street is nearly .at right angles with the defendant’s tracks, and when it is light and there is no obstruction to the vision, the track east and west of the crossing can be seen for • a quarter of a mile. As the deceased approached from the south to within a few steps of track No. 1, an express train, consisting of a locomotive and six or eight cars passed going west on track No. 2, The deceased stopped and stood until this train had. passed; then, looking east and West, he proceeded upon his journey, when an express train from the -west going from thirty-five to forty miles an .houij passing along track 1, struck the deceased and killed him. The plaintiff gave evidence tending to show that when the deceased approached track 1 it was between daylight and dark; that there were dark clouds in the sky and it was somewhat misty; the west-bound train had 'thrown a heavy cloud of black smoke upon the track within a few feet of the ground, and the wind prevailing blew the smoke in the direction of the deceased and seemed to be near him. The train that struck the deceased passed very soon after the west-bound train. Several witnesses who were observing whether any signal or warning was given of the approach of the train that struck the deceased, testified positively that no bell was rung or whistle blown, or other signal given of the approach of the train that killed the deceased.

Several witnesses testified as to the condition of the deceased’s eyes and his ability to see, and it appeared from their testimony, or that of some of them, that the deceased was near-sighted; that his eyes had been affected for a long time; that they were inflamed, water ran from them and a white film gathered over them; that in order to see he had to hold objects within four or five inches of his face to distinguish such objects as the face of a clock or to read; that m attempting to work in his garden he would hoe up and pull out vegetables instead of the weeds that he was intending to remove; that in driving nails with a hammer he would put on his spectacles and place his eyes very near the nails while driving themthat in assorting beans, potatoes and other articles he would feel around with his hands for them to find what was plainly discernible to. others; that he had difficulty in driving upon highways in distinguishing people and vehicles that he was passing, and lie had to get very close to his nearest acquaintances to recognize them; and other circumstances were detailed pointing to a very serious difficulty in the eyes of the deceased and great impairment of his vision.

The appellant contends that this order should be reversed on its exceptions taken at the trial upon its motion for a nonsuit, the! grounds of which were that the plaintiff had not established the negligence of the defendant, that the deceased had not been shown to be free from contributory negligence; and that the deceased was guilty of such negligence as would bar recovery in the action.

There was abundant evidence to go to the jury upon the question of the defendant’s negligence, and, with this statement, we dismiss that branch of the case.

The point mainly pressed by the appellant upon this review is, that the deceased was shown guilty of contributory negligence by the evidence as a matter of law.

In Beisiegel v. N. Y. C. R. R. Co. (34 N. Y. 632) the court says: “ The omission of the customary signals was an assurance by the company tó the plaintiff that no engine was approaching within a quarter of a mile. of either side of the crossing. On this he was entitled to rely, and to the defendant'he owed no duty of further inquiry.” It is true that this was said while the statute was in force requiring the blowing of a whistle or the ringing of a bell a quarter of a mile of the crossing; but since the repeal of that statute it has been distinctly settled by a long line of authorities, and it is the law of this State, that the railroad companies, at crossings, should give some adequate notice or warnings to travelers upon highways of the approach of their trains, and it was for the jury to determine whether, under the circumstances of each case, such warning'had been given, and the deceased was, therefore, justified in assuming that a proper warning of the approach of any other train to that crossing would be given and in relying upon it. The train that struck the deceased was ten or fifteen minutes late. The jury found that no warning was given; hearing none, the deceased, though he listened, might not hear the roar of the approaching train, as the noise of the west-bound passenger train may well have deadened the sound of the approach of the train from the west, so that the deceased, if he had heard the train while looking and waiting, may well have supposed that it was the train that had just passed, as the noise from that train, and also of the train that was- approaching him, would come from the same direction. This is an important circumstance in considering whether deceased was guilty of contributory negligence. (Ingersoll v. N. Y. C. & H. R. R. R. Co., 6 N. Y. Sup. Ct. [T. & C.] 419, and cases cited; Powell v. N. Y. C. & H. R. R. R. Co., 22 Hun, 59; Leonard v. N. Y. C. & H. R. R. R. Co., 42 N. Y. Super. Ct. [10 J. & S.] 225.)

In Greany v. L. I. Railroad Company (101 N. Y. 425) Dakforth, J., quotes with approval /Shaw v. Jewett (86 id. 616). in which it is said “ the plaintiff is not bound to see; he is bound to' make all reasonable effort to see that a careful, prudent man would make in like circumstances. He is not to provide against any. certain result. He is to make an effort for a result that will give safety; such effort as caution, care and. prudence will dictate.”

In Oldenburg et al. v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 419) Judge Vann says: “ Can the court say that, knowing nothing of his surroundings, he was bound to look in any particular direction while, hearing no bell and conscious of no danger, he took one step and part of another? * * * It was his duty to look to the east where there was no obstruction in sight, but while he was hound to use his eyes, we cannot say that he was bound to use them in a particular manner, at a particular instant of time. We think that it-was for the jury to take into consideration all the circumstances and decide whether he exercised such care as could reasonably he required of one in his situation and with his knowledge.”

McNamara, as Administrator, v. N. Y. C. & H. R. R. R. Co. (136 N. Y. 650, 653) was a case where the plaintiff’s intestate was killed at a crossing under circumstances somewhat similar to those in the case at bar, and where a preceding train had emitted a volume of smoke from its engine, which settled down upon the crossing at which the deceased was waiting for the train to pass, and prevented her from seeing objects approaching from the east or west. The court attached importance to this circumstance upon the question of contributory negligence and reversed the General Term of the fifth department (reported 19 N. Y. Supp. 497), which held that when one goes upon a railroad crossing while the smoke left by a passing train still obscures her vision so that she could not see an approaching engine she was guilty of negligence per se. The Court of Appeals held that this was a question for the jury, and in the course of its opinion distinguishes the case of Heaney v. Long Island Railroad Co. (112 N. Y. 122), and we quote : . “ In that case there was no evidence whatever of any negligence on the part of the defendant, and the decision might well rest upon that ground alone. * * - * In the former case an old man, sixty-six years of age, with defective hearing, attempted to cross a railroad at a private crossing, where there was no obligation'to ring the bell or sound the whistle; where no flagman was stationed, and where trains might properly run at any rate of speed. It is obvious that he had no safeguards to rel/y upon, except such as were furnished by his senses, which were imperfect even for a person of his age and condition. The day was dark and his vision was obscured by smoke which had settled upon' the track. * * * She (the deceased in the McNamara case) had the right to rely ujion the presence of the flagman to warn her of any danger, and she had a right to assume that trains wouxcl not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train ty ringing the tell and sovmding the whistle. It is obvious that the conduct of the deceased in attempting to cross .undér such circumstances must be judged by a different rule than was applied to an aged person crossing at a private way without any assurance of safety except his ability to hear and to see, which it appears was much impaired.”

The General Term in the McNamara case relied upon the Heaney case to sustain its position (and as we have seen upon appeal) without fully distinguishing between that case and the case before it.

In the case at bar there had been a recovery on a former trial, and the General Term of the fifth department (reported 83 Hun, 271) reversed thé judgment and held, upon the strength of the Heemey case, substantially, as was held in the McNamara case at General Term. Judge Lewis says, however, -in deciding this case at General Term (83 Hun, supra), “ there was some evidence which it is claimed by the plaintiff tended to show that the deceased’s eyesight was somewhat defective. . This evidence was given by the plaintiff. She testified that her husband’s eyesight was defective; that he could not see anybody very far offthat he could not see very good far off. When asked to give her reason for the opinion that he could not see at a distance, she replied, that he told her he could not. When asked to state any circumstance'which led her to think that- he could not see at a distance, she replied that they were once standing in-t-he street, and that she pointed out to him some, houses that she could see, and that he could not see so far or as plainly as she could; and she testified that that was the only circumstance that she could remember from which she inferred that he could not see as far as she could. She testified- that he' caught cold in his eyes, and that water ran out of them. When asked to state how far distant the "houses were that the deceased attempted to see, she replied that she did not know. She testified that the- deceased was obliged to use eye-glasses to read.”

The court adds“ He (the deceased) was sixty-two years old at the time of his death. Whether his eyesight proved to be more defective than was usual with persons of that age is doubtful.' It is a matter of common knowledge that there is a difference in ability of persons to see at a distance. It cannot be fairly claimed, from the evidence, that there was such a defect in the decedent’s eyesight as prevented him from seevng the smohe which was upon the track. There is nothing in the evidence which will justify the inference that the defect in the decedent’s eyesight had anything to do with the accidept. If there was a cloud of smoke upon the track, as described by the plaintiff’s witnesses, and we assume there was, the deceased was able to see it had he looked in that direction.”

And the learned justice concludes, in effect, that the deceased was guilty of contributory negligence in going upon the track, knowing that the smoke which was there might prevent him from seeing the approaching train.

We quote fully from this opinion, that we may be possessed of the evidence given upon the first, trial as to the condition of the deceased’s eyesight. This evidence was, substantially, the conclusions of the witness, and she failed to point out facts to establish her claim that the deceased was unable to see the smoke upon the track, or distinguish it from clouds or the coming darkness. Upon the second trial, as we have shown, there was abundant evidence given of facts showing that the deceased could see but a very short distance, and the assumption,. therefore, that he did see the smoke and knew it to be such, upon which the reversal of the first judgment is based, disappears, or, at least, it becomes a question for the jury to determine, and the question was properly submitted to the jury upon the evidence in the last trial, as to whether the deceased was able to see the smoke, and distinguish-it-as such, at the time he attempted to cross the track, or whether his eyesight was so defective that, in the darkness gathering about him, in the mist and under the overhanging clouds, he could not distinguish the smoke from other objects. The jury found, in effect, that he could not, and by that finding we must abide.

No case has ever gone so far as to hold that the person passing along a highway is bound to see an obstruction that, from physical defects and impaired vision, he cannot see. On the contrary, it has been held that impaired vision and even blindness does not prohibit a person from traveling upon a highway or a sidewalk in the day or in the night time, but that he must exercise reasonable care under the circumstances of the case and in view of his infirmities. (Davenport v. Ruchman, 37 N. Y. 568, 573; Peach v. The City of Utica, 10 Hun, 477; Harris v. Uebelhoer, 75 N. Y. 169, 175.) The Court of Appeals, at the last page cited in the last case, says: “ A public highway is liable to use, and may be of right used, in the darkest night; a night so dark as that the keenest and clearest vision would not be able to detect obstacles and defects. In such case every man traveling upon it is practically a blind man. Yet if he be injured by an obstacle or defect, without the absence of what, in the circumstances, are ordinary prudence and care upon his part, he is not remediless. The fact that, having eyes, he could not see the cause of the injury, is not, per se, such conclusive evidence of his negligence as that the law must so adjudge, as a matter of law. Blindness, of itself, is not negligence, any more than the obscurity of sight by the absence of light.”

The deceased had the right to be traveling upon this highway under the circumstances, even with his infirmities as to sight. ITe had the right to cross the defendant’s tracks, using such care ,as his situation required. He had the right to demand of the defendant a proper warning of the approaching train and to rely upon it. At best, he was surrounded by difficulties in attempting to reach his home between daylight and dark, when the defendant was moving its trains negligently in different directions at this crossing so that,, with his impaired vision, he could not determine from his hearing, which appears to have been good, the approach of the train that took his life. It was fairly a question for the jury to determine, under all the circumstances, whether the deceased was guilty of contributory negligence, and'the trial court reached the right conclusion.

The case as presented by the proof upon the last trial is easily distinguishable from the case reviewed by the General Term. It is evident from Judge Lewis’ opinion that had the same proof been given upon the first trial as upon the last, of the defect in the deceased’s vision, Ms conclusions upon the case would have been different.

The principle has been asserted so long and so often as almost to-become a legal axiom, that, where the evidence or the inference therefrom tend in any degree to show the freedom of' the plaintiff or the deceased whom he represents from contributory negligence, then the question of contributory negligence is not one to be disposed of by the court, but must go to the jury.

The conclusions lead to .the result that the order appealed from, should be affirmed.

All concurred, except Green, J., not sitting.

Order affirmed, with costs.  