
    James C. B. Fisher, Respondent, v. Central Vermont Railway Company, Appellant.
    Third Department,
    November, 1905.
    Contributory negligence—failure of pedestrian to look while crossing railroad tracks when view is obstructed by cars—care required in crossing tracks, though no signal given by approaching train.
    The plaintiff was injured by being struck by the tender of an engine at a grade crossing with which he was familiar. Coming from the west, he had already ' crossed two tracks which he knew to be used as sidings, his view to the south ' down- the third or main track being cut oñ by-cars standing on the two tracks first crossed by him. Between the first and second tracks he' looked both north and south, but his view to the south, down the third track, was cut off as aforesaid. On passing the second track he did not look south until he was about to step over the first rail of the third track when he Was struck and injured by the tender of an engine' backing - north. Between the middle and third track there was a space of séven feet with a clear view in both directions. He was carrying an umbrella inclined southward against the rain and did not slacken his gait when stepping upon the last track.
    
      Held, that there was contributory negligence which barred a recovery;
    That a failure of defendant to sound bell or whistle at a crossing did not justify plaintiff in crossing.without looking for an approaching train;
    That, as plaintiff had not been invited to cross by an employee of defendant, and there were no gates standing open so as to imply an assurance, by defendant that no train was approaching, plaintiff was not justified in attempting to cross without reasonable care for his own safety.
    Chester, J., dissented.
    Appeal by the - .defendant, the Central Vermont Railway Company, from a judgment of the Supreme Court in favor- of the plaintiff, entered in the office of the clerk of the county of Clinton on the 13th day of April, 1905, upon the verdict of a jury-for-$7,000, and also from an order bearing date the 12th day of April, 1905, and entered in said clerk’s office," denying the defendant’s motion for a new trial made upon the minutes.
    
      L. I. Shedden and Charles J. Vert, for the appellant.
    
      John H. Booth and Gaylord T. Ames, for the respondent.
   Chase, J.:

On the morning of September 24, 1904, the plaintiff was struck and seriously injured by the tender of an engine-which "was being backed over a grade crossing at Rouses Point, and this action is brought to recover .damages- for such injuries, the plaintiff claiming that they .were wholly occasioned by the defendant’s negligence. - At the place where the accident occurred there are three tracks extending nearly north and south. The three tracks are crossed at: grade by Pratt street, which runs nearly east and west. On each side of Pratt street is a plankwalk. The walks do not cross the tracks at right angles, but-extend-north nearly one foot from a right angle in every three feet going toward the east. The tracks are numbered 1, 2 and 3 from the west. Tracks 1 and. 2 are side or switch tracks for storing cars. Track 3 is the main track from Rouses Point to Montreal. On the morning of the accident on track 1 was an engine with several cars attached. The front of the engine stood a little northerly of the south crosswalk. On track 2 was a detached mail car, the north end of which extended about one-half across the south crosswalk, and north of the north crosswalk was another detached car standing on track 2. The distance between tracks 1 and 2 is about seven feet seven and a half inches, and the distance between track 2 and track 3 is about six feet eleven and a half inches. For several years it lias been the custom for the Grand Trunk Railway Company each evening to run a passenger train on track 3 to the station at Rouses Point and then on to track 1, and after detaching and removing the engine leave the cars there over night. On each morning the engine is again attached and the train is run north on track 1 from Pratt street and is backed up to the station on track 3 a little north of Pratt street. It leaves Rouses Point for Montreal about seven o’clock in the morning. It has also been the custom of the Delaware and Hudson Company to leave detached mail cars on track 2 substantially as they were on the morning of the accident during each day until the evening train. The defendant has a train which each morning comes from St. Albans and is due at Rouses Point at six-fifteen in the morning. .It backs into the station north of Pratt street, and after unloading passengers and baggage, the cars are placed on a side track north of the station. The engine is then uncoupled and run on track 3 to a turntable south of Pratt street, -where the engine is turned and where water is taken therefor, and it is then backed north across Pratt street and remains on the side track until the train is taken to the station again, and it leaves for St. Albans at nine-fifty-five a. m. Trains and engines are frequently run over track 3, and plaintiff was familiar with the place and with the way cars are left on the tracks and with the running of engines and trains over said tracks. The plaintiff for about four years was employed in a factory east of the tracks, but lived in a house a short distance west of the tracks. On the morning of the accident it was misty and a slight rain was falling. The plaintiff left the house, West of the tracks, a few minutes before seven o’clock, stopped at a building west of the tracks, where he borrowed an umbrella, put .it up, and, carrying the umbrella, followed a man who was a short distance ahead of him.. The, Grand Trunk railway engine and train on track l was about to start, and the- engine was letting off steam, blowing its whistle and ringing its bell. Plaintiff, without waiting for the train to pass, ran around ahead, of the engine .and back on to the sidewalk between tracks 1 and 2, where he says he looked both ways' and listened. He continued on the ■ sidewalk in front of the mail car on track 2. He was walking at a speed of from four to five miles an hour, and ¡did not. either stop- or slacken his speed. He says as he passed the mail car and while between tracks 2 and 3 he looked to the- north, and as he was, about to step over the first rail of track 3, lie turned to look to the south just as he was hit by the tender of the engine.. There is a conflict in thé evidence as to whether the engine which hit the plaintiff was blowing its whistle or ringing its bell. There was no point west of the,place where the accident occurred, exceptafter passing the -mail Car, where the plaintiff could see south on track 3 to determine whether a train was approaching. If he looked, when between . tracks 1 and 2,fit.was unavailing and .useless,; because1 he knew and testified that he could not' see south to discover a train at any point west of the place between tracks 2 and 3. The angle of the sidewalk crossing the tracks made him partially -face the north, and as the street at that point was about sixty-two feet wide he could see, when back of the mail car, sufficiently far to the north to ascertain whether there was any danger from that direction. The rain was coming from the southeast,, arid he was holding' his umbrella so as to protect him from such rain. The engine was going at from ten to twenty miles an hour, and even at the maximum speed of the engine it did not go to exceed four or five times' the speed of .the plaintiff, and from the plaintiff’s testimony it appears that when he passed from behind the mail car the tender of the engine must have been within about twenty- feet of the sidewalk on which he was walking. That the plaintiff looked for the engine after he was actually upon track 3 neither saved him from the accident nor was of any use to him as a precaution. There was no necessity for the plaintiff’s continuing to look to the north until he had passed upon tráclc 3. There was ample opportunity for him to look to the north when behind the mail car, and his failure to look south on track 3 before he passed upon the ■ track in front of the engine was carelessness and negligence on his part. .

The mere fact that the defendatit failed to give sufficient notice, by whistle or bell, of its approach to the crossing, is not sufficient to justify a person going upon the. tracks at a crossing without looking to see whether a train or engine is approaching. (McSweeney v. Erie R. R. Co., 93 App. Div. 496.)

Where a person is told to cross the tracks of a railroad by an employee of the railroad company, or where the crossing is protected by gates and a gateman, and the gates are open as an implied assurance that an engine or train is not immediately approaching, or where a train stops at a depot and nó warning is given against passengers leaving the train to pass over another track to the depot platform, or where in any other manner a railroad company invites or suggests the crossing, the vigilance required of a person about to cross the tracks of a railroad is and ought to be materially relaxed.

The cases cited by the plaintiff to sustain liis júdgment are all distinguishable from this case, and mainly by reason of the fact that the defendants therein had done something to justify a relaxation of the rule that a person must not take the danger incident to crossing a railroad track at grade without exercising reasonable care for his own safety and protection.

There are no peculiar facts in this case excusing plaintiff from looking to the south before he attempted to cross track 3. If he had slackened his speed so as to have given him more time to look, or even at the rapid gait at which he was walking if he had looked to the south at once after emerging from behind the mail car and after he had time and opportunity to look to the north, the accident would have been avoided. His apparent anxiety to get across the tracks and to protect himself from the rain led him to cross track 3 without taking the precautions that án ordinarily prudent man should have taken. His failure to look was negligence contributing to his injury. (Thomp. Meg. [2d ed.] §§ 1637-1661; Reed v. Metropolitan Street R. Co., 180 N. Y. 315; Young v. N. Y. L. E. & W. R. R. Co., 107 id. 500; Cordell v. N. Y. C. & H. R. R. R. Co,, 75 id. 330.)

The judgment and Order should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except Chester, J., dissenting; Houghton, J., not voting, not being a member of this court- at the time' this decision was handed down.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  