
    GRAY v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    November 18, 1902.)
    1. Railroad Crossing Accident — Frightening Horses — Negligence.
    After the passage of a train, defendant’s gateman raised the gate, and beckoned to plaintiff — 'who, to avoid frightening his horse, had stopped 100 feet away — to come on, and, just before plaintiff reached the tracks, suddenly lowered the gate, frightening the horse, as a train came from the opposite direction, where, except for the train which had just passed, he had a long unobstructed view of the tracks. Held, that the question of defendant’s negligence was for the jury.
    2. Same — Contributors' Negligence.
    Whether one who, on the gate being raised at a railroad crossing, and the gateman signaling to him to come on, drives forward, watching only the horse, the crossing, and the gateman, and not looking up the tracks for a train, view of which was substantially obstructed, was guilty of contributory negligence, is a question for the jury.
    
      8. Same — Evidence.
    On the question of the contributory negligence of one who drives towards a railroad crossing without looking for a train, he may testify why he did not look.
    Appeal from trial term, Cayuga county.
    Action by Hulbert Gray against the New York Central & Hudson River Railroad Company. Plaintiff moves for a new trial on a case containing exceptions ordered to be heard in the first instance at the appellate division after a direction by the court at a trial term that plaintiff be nonsuited and his complaint dismissed. He-also appeals from an order denying his motion on the minutes for a new trial.
    Reversed, and new trial granted.
    Argued before McLENNAN, SPRING, WILLIAMS, HISCOCK, and DAVY, JJ.
    James Wright, for appellant.
    Daniel M. Beach, for respondent.
   HISCOCK, J.

This action was brought to recover damages sustained because of plaintiff’s horse becoming frightened and running away. Said fright occurred at a highway crossing of defendant’s tracks near the village of Weedsport, and was occasioned by the sudden lowering of defendant’s gates in connection with the passage of one of its trains. Plaintiff complains of defendant, because, as he claims, he was invited by its gateman to cross the tracks upon assurances of safety, and then, when he had come close thereto, the passage of the train and the lowering of the gates suddenly took place. We think the conduct of the defendant and plaintiff upon the occasion in question should have been passed upon by the jury, and that it was error for the learned trial justice to grant a nonsuit. The evidence upon the trial beyond any question would have warranted a jury in finding the following facts: Defendant’s tracks at the point in question ran substantially east and west, and consisted of the four regular tracks and one branch or switch track lying northerly thereof. The road upon which plaintiff was traveling ran substantially north and south. The accident took place in the daytime. Plaintiff was approaching from the north, driving the horse in question attached to a buggy. A west-bound freight train was standing upon the branch in question easterly of the highway, getting up steam. As a matter of precaution, and to avoid fright of his horse, plaintiff drove into an adjoining yard until said train should pass by. As it commenced to move westerly over the crossing, he drove back into the highway at a point distant from the crossing ioo feet or more. As the train was about clearing the crossing, defendant’s gateman raised the gates, and beckoned to plaintiff to come across. At that time the plaintiff was either standing still or moving very slowly in 'the road. Upon receiving the signal, he started his horse on a slow trot for the crossing. As he came within a short distance of the tracks, suddenly a train came from the west, and the gates were lowered in front of his horse, which took fright and ran .away. As ’’¿aintiff approached the crossing after receiving ■ the signal of the gateman, he watched his horse, the crossing, and the gateman, and did not look either easterly or westerly upon the tracks to any extent. There were obstructions to his view towards the west, from whence the train in question approached. These obstructions consisted, amongst other things, of a row of trees upon the westerly side of the highway, extending nearly down to the tracks; also of quite a large orchard situated westerly of the highway, and in the angle-between it and the railroad tracks; also of two other short rows of trees westerly of the highway, and extending at right angles with it. In addition, the freight train first mentioned proceeding westward upon the branch track for. some distance obstructed plaintiff’s view of the main tracks. Defendant’s gateman had a long unobstructed view of all of its tracks towards the west, subject to the temporary interruption thereof by passing trains. It may be doubtful whether a jury would have had the right to say that the fright of plaintiff's horse was caused in whole or in part by the passage of the train. Plaintiff himself states at one or more places that it was the sudden lowering of the gates in front of his horse that frightened him. Other evidence, which was before the jury, however; indicated that the fright of his horse occurred coincidently with the passage of the train, and under such circumstances that we think the jury might have been permitted to say that the latter contributed to the fright. We, however, do not regal'd it as of special significance in this case whether the horse was scared by the passage of the train, or by the unexpected and abrupt lowering of the gates, or by both together. It readily may be conceded, as argued by defendant’s counsel, that under many circumstances a railroad company would not be liable for the fright of a horse at a highway crossing. If a traveler voluntarily, and acting upon his own responsibility, should approach a crossing, and his horse should become frightened by the ordinary passage of a train, or by the proper lowering of the gates, there could not be a recovery. His mishap would be the result of risks naturally and reasonably incident to the operation of a railroad. We do not, however, regard this appeal as presenting such a case. Here the plaintiff was proceeding with more than ordinary caution, keeping away from the crossing while trains were being operated there-over, and apparently seeking to avoid just such an accident as finally did overtake him. He was drawn away from this course of conduct by defendant’s agent. Not only by the raising of the gates, but by the affirmative, specific signal of the gateman, he was invited and directed to cross the tracks. He was, in effect, assured that the crossing would continue clear for a long enough time to enable him to reasonably and safely proceed over it. He was, as we think, in substance guarantied that there would be no material change in the conditions which surrounded the crossing while he was proceeding over it which would be reasonably calculated to increase his risks in so doing. Obeying and acting upon the directions and assurances which he received, as a jury might say he started to make the crossing, and then, when he had come in close proximity thereto, a train suddenly passed over it, and the gates were lowered in front of his horse, causing the accident complained of. We think there is no reasonable opportunity for difference in opinion that the passage ■of the train and the lowering of the gates were a breach and a violation of the signals and directions which the gateman had given to plaintiff to proceed. It seems to us also quite clear that a jury would have the right to hold defendant responsible for the damages which resulted from such conduct. Very likely, when plaintiff had been brought close to the tracks, and the train approached the crossing, it was the duty of the gateman to drop the gates. That was, perhaps, necessary as the lesser of the two evils, and to prevent a still more serious accident than did happen. The fault of the defendant’s employe might be said by a jury to lie back of that act, .and to have been committed when he signaled plaintiff to cross the tracks with the implied assurance that he had sufficient time to do it, when, as a matter of fact, the approaching train did not afford such ■opportunity for safe passage. We think it was for the jury to say whether such conduct was or was not improper and negligent.

It is urged by defendant’s counsel that, even if the latter was negligent, the plaintiff himself was guilty of contributory negligence in .not looking up and down the tracks, and seeing and avoiding the approaching train. We think, however, that this question was also for .the jury. The plaintiff received the invitation and signal already mentioned to proceed across the tracks. It is well settled that the mere •raising of the gates was such an assurance as would very materially relieve him from the ordinary precautions to be observed while approaching the tracks. In addition to that, however, in this case the flagman, by his own personal signals, invited him to come on, and ■practically told him that no train was approaching which would interfere with his crossing the tracks. When one of its servants has given such assurances as these of safety, it does not lie with the defendant to complain because the traveler has not been alert to discover conditions which are at variance with those which he has been •told exist. The plaintiff watched the horse, the crossing, and the gateman, very likely believing that, if any change did occur, the latter would indicate it to him. In addition, there were substantial obstructions to his seeing the train in question, even if He had looked for it. We do not feel prepared to say, as a matter of law, that he •did differently than a man of ordinary prudence would do under similar circumstances.

The discussion of the latter question brings us to the consideration of one or more rulings made by the trial justice in excluding evi-dence. Assuming that this question of plaintiff’s contributory negligence is and was a close one upon the law, it was incumbent upon the trial court to allow plaintiff to give any proper explanation of his -conduct in not looking for an approaching train. Upon this line of examination plaintiff’s counsel asked him questions tending to draw out that he relied upon the signals of the flagman in approaching -the crossing and that as he approached he was looking at the gate and the flagman. He was then asked this : “Q. When you were out in the road, after having left the Adkinson yard, and was in the road with your horse headed southward, why didn’t you look west?” This was objected to by defendant, and the objection sustained, to •which exception was taken. We think this was error. We think the question legitimately called for any proper explanation which the plaintiff might desire to give of his failure to look' up the tracks, as it is now claimed by the defendant he should have done. We cannot say that his answer would' not have been material upon this issue. The exceptions of plaintiff should be sustained, the order denying a new trial reversed, and a new trial granted, with costs to appellant to abide event.

Plaintiff’s exceptions sustained, order denying motion for new trial reversed, and a new trial granted, with costs to appellant to abide event. All concur.  