
    Ida G. Richardson, by Guardian, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Negligence—Railboad cbossing.
    Plaintiff was injured while driving across defendant’s track after dark. There was evidence that the train was run at a dangerous rate of speed for that locality, and, although it could be seen for some distance, plaintiff testified that she looked and listened for its approach, but did not see or hear it; that the flagman made a motion with his lantern, which she took as a signal to come on, and that another person crossed from the opposite direction at the same time in safety. Held, that the questions of negligence were properly submitted to the jury.
    2. Same—Chabqe.
    In such case it is not improper for the court to decline to charge that the rate of speed at which plaintiff approached and drove upon the track, a slow trot, of itself constituted negligence on her part.
    Appeal by the defendant from a judgment entered on the verdict of a jury at the Ontario circuit, and from an order denying the defendant’s motion for a new trial on the minutes' of the court
    
      J. W. Dunwell, for app’lt; John Gillette, for resp’t.
   Dwight, P. J.

Soon after dark on an evening in October, 1889, the plaintiff, a young woman of twenty years of age, was driving one horse in a top buggy over the track of the defendant’s road at the crossing of Exchange street, near the station, in the village of Geneva, when a train of the defendant coming down the grade and around a curve, from the west, collided with her vehicle and she was thrown out upon her head, sustaining an iniury for which the jury in this action awarded her a verdict of $5,000.

Evidence for the plaintiff tended to show negligence on the part of the defendant in respect to the rate of speed at which the train was run-; there being evidence which tended to show that it was an undue, improper and dangerous rate of speed at which to run a train across a much frequented street in a large and populous village, and the case in this respect was properly submitted to the jury. Thompson v. The N. Y. C. & H. R. R. R. Co., 110 N. Y., 636: 16 N. Y. State Rep., 869.

One peculiar circumstance is disclosed by the narrative of this case, which necessarily bears upon both the main questions involved in actions of this character. The flagman was on the crossing and had his lantern, or, as he testifies, two lanterns in his hands. The plaintiff testifies that he made a signal with his lantern for her to come on, and she describes the motions of the lantern as being in line with the highway and across the tracks. This she says she took for a signal to her to cross, which she relied upon and attempted the crossing with the result which has been mentioned. A witness called by her testified that be came to the crossing from the opposite direction almost at the same moment as the plaintiff, and was beckoned by the flagman to cross, which be did in safety, though barely escaping collision with the engine. The plaintiff further testifies that after her 'horse had crossed the track on which the train was coming and when her carriage was on the track, the flagman seized her horse by the head and stopped him. Of course there was contradiction on all these points, but the question of fact in respect to each of them was submitted to the jury with proper instructions as to the bearing of the facts, if found, upon the verdict to be rendered.

The plaintiff was familiar with the crossing and knew that the train was due at about the time at which it did in fact arrive; and the evidence is undisputed that after passing a point fifty-one feet distant from the track, in the middle of the street, the train was in her view coming down the grade toward the crossing, if she had looked at it She testified that she was attentive to the situation, looking and listening for the train, so that it would seem that there must have been something to distract her attention from the true situation and to reassure her of safety in the attempt to cross the track. Whether this was the supposed signal of the flagman to come on, or the sight of the other passenger crossing from the other side, in safety as it proved, between herself and the approaching train, or both these circumstances combined, and how far she was justified in relying upon these indications, in view of all the circumstances of the case, was probably a question for the jury, and, as such, it was properly submitted by the charge of the court. The case is by no means freq from doubt, and may even be regarded as an extreme case for submission to the jury upon the question of the plaintiff’s contributory negligence; but admonished as we are of the danger of invading the province of the jury upon this particular question, we do not feel justified in holding, as matter of law, that the plaintiff did not exercise that ordinary degree of care for her own safety which was reasonably to have been expected of her under all the circumstances of this case. Greany v. R. R. Co., 101 N. Y, 423; Parsons v. R. R. Co., 113 id., 364; 22 N. Y. State Rep., 697; Swift v. R. R. Co., 123 N. Y, 649 ; 33 N. Y. State Rep., 604.

The case being one which the court was required to submit to the jury, there was, so far as we observe, no error committed on the trial or in the submission of the case which vitiates the verdict. It was not error for the court to decline to charge that the rate of speed at which the plaintiff approached and drove upon the track, which she describes as a slow trot “ and slowed up toward the railroad track,” of itself constituted negligence on her part. Totten v. The R. R. Co., 32 N. Y. State Rep., 765.

All the instructions to the jury, both in the general charge and in response to requests, seem to us to have been extremely well guarded and free from objection ; and we find no ruling on evidence which seems to us to give ground for exception. The damages awarded, though liberal, are not so clearly incommeasurate with the injuries which the jury might find to have been sustained as to warrant this court in setting aside the verdict on that ground.

We think the judgment and order must be affirmed.

Macomber and Lewis, JJ., concur.  