
    Camilla G. Towns, as Admr’x, etc., of Charlie O. Towns, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    Negligence—Railroad crossings.
    Plaintiff’s intestate was killed by defendant’s engine, while driving across a crossing in a city at a slow trot. It appeared that the whistle for the station was blown more than a block away from the place of accident and the evidence was conflicting as to whether it was again blown or the bell rung. It also appeared that the train was running at the rate of twenty-five miles an hour, that a city ordinance forbid a greater rate than five miles, and that there was a defective brake. There was evidence that the deceased looked both ways before crossing and that there were obstructions. Held, that the questions of negligence and contributory negligence were properly submitted to the jury.
    Verdict for the plaintiff in the sum of $2,500, taken at the Jefferson circuit A motion for a new trial on the minutes was denied and an order to that effect appears in the appeal book. The appeal is from the judgment and the order. The case contains all the evidence. Action is brought to recover damages caused by the killing of plaintiff’s intestate on the 13th day of July, 1888, at the city of Watertown.
    Defendant’s train was passing from Carthage into the city of Watertown on its track in nearly a westerly direction, and it had passed Hamilton street, Central street, and deceased was killed while it was passing Eutland street. He was engaged in delivering milk to customers in the city, and his last delivery was at the house of Mrs. Wisner, which was on the south side of the track. He started his horse from her house going northwardly, and as his horse was passing the track the train struck the wagon and caused the death. There is evidence in the case from which the jury were warranted in finding that before the deceased passed upon the tracks of the defendant he looked both ways to apprehend the approach of a train. The train was a few minutes late.
    There was some cars standing near the approach to the crossing, which, to some extent, obstructed the view in an easterly direction. The evidence tends to show that the deceased was approaching on a slow trot, or, as one witness says, his horse was on a “ slow shack ’’ as he approached the track.- There was some evidence to indicate that the station whistle was given while the engine was between Hamilton and Central streets. There is conflicting evidence as to whether the whistle was blown otherwise than for the station, or the bell rung. The evidence tends to show that the train was moving at the rate of from twenty to twenty-five miles an hour.
    
      Edmund B. Wynn, for app’lt; Hannibal Smith and W F. Porter, for resp’t.
   Hardin. P. J.

Whether or not the defendant was guilty of negligence which caused the death of the plaintiff’s intestate was a question of fact for the jury, and the evidence required the court to submit the question to the jury.

There is a conflict in the evidence as to whether the signals were given or not. After a careful perusal of the evidence we are satisfied that within the rule laid down in Culhane's case and other cases to like effect, that there was sufficient evidence to justify the jury in finding that the bell was not rung or the whistle sounded while the train was passing from Central to Eutland streets where the accident occurred

(2) There was evidence that the train was moving at the rate of twenty-five miles an hour at the time and just preceding the accident.

(3) There was evidence that there was an ordinance of the city restricting the movement of trains to five miles an hour.

(4) There was evidence that one of the principal officers of the defendant had issued a regulation requiring the movement of trains with care and caution in approaching the station in question.

(5) There was some evidence tending to show an imperfection in one of the brakes in use upon the train which prevented its full operation and effect when applied to slacken the speed of the train.

In Massoth v. Delaware & Hudson Canal Company, 64 N. Y., 529, it was said by Allen, J., that city ordinances of the character of the one introduced in evidence in this case are competent evidence upon the question of negligence of railroad corporations, and with proof of a greater rate of speed than that prescribed, proper, with all the other evidence in the case, to be submitted to the jury for their consideration.”

Second. We are of the opinion, after a careful perusal of the evidence that the question of contributory negligence was one of fact for the jury, and that the same was properly submitted to them for determination.

In Massoth v. Delaware & Hudson Canal Co., 64 N. Y., 529, Allen, J., says: “ It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury and nonsuit the plaintiff.” Lane v. Atlantic Works, 111 Mass., 136; Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 451; Hackford v. N. Y. C. & H. R. R. R. Co., 53 id., 654.

We find the same doctrine reaffirmed and clearly stated in the opinion of Ruger, Ch. J., in Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 355; 22 N. Y. State Rep., 697, in the following language : “ The law does not require this; neither is there any rule which will defeat a recovery in cases of this kind merely because it was possible for an injured person to discover an approaching train. The law does not forbid persons from crossing railroad tracks or impose upon them exclusive responsibility for damages incurred in making such an attempt The question is, whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must, in all cases, except those marked by gross and inexcusable negligence, render the question involved • one of fact for the jury.”

While we recognize the rule that the burden of proof is upon the plaintiff to show the absence of contributory negligence, and that this may be shown by the direct evidence or by evidence and circumstances which reasonably warrant an inference therefrom that the deceased was free of contributory negligence, we are of the opinion that the evidence was sufficient to warrant a favorable verdict for the plaintiff upon the question.

(3). Although the appellant’s counsel has in a very general way alluded to the exceptions taken during the trial, and has not presented any argument in respect to any one of them, we have examined them and find no error was committed in the omission or rejection of evidence, or in refusing to nonsuit, and that the charge of the trial judge was delivered to the jury in language satisfactory to the defendant, as we must assume, as no exception was taken thereto. We think the motion for a new trial was properly denied.

Judgment and order affirmed, with costs.

Martin, J., concurs; Merwin, J., not sitting.  