
    Martha J. Parsons, as Exr’x, etc., Resp’t, v. The New York Central and Hudson River Railroad Company. App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Negligence—Railroad—Gross negligence—Liability for.
    The plaintiff’s intestate was run over and killed at the Perry street station in the city of Buffalo by the engine of a freight train belonging to the defendant, moving southerly at the rate of from twenty to thirty miles an hour. He was a passenger on a train going northerly, and when the train reached the station and while it was moving slowly but had not entirely stopped, he stepped down upon its westerly side upon the platform and proceeded along the side of the moving train some forty or fifty feet, when he attempted to cross the westerly track. Before this the train had stopped. When he was between the rails of the westerly track he was struck by the engine of the freight train which was backing rapidly down. The rules required freight trains to approach slowly and stop before reaching stations at which a passenger train was landing passengers. The freight train was partially concealed from view as it approached by a curve in the road and by the trusses of a bridge over Perry street over which it had to pass. The deceased was struck when about twenty feet away from the bridge and while walking in the direction of the approaching train. Held, that when the deceased alighted from the train he was neither a trespasser or a wrong doer by so doing, that he might thereby have subjected himself to increased risks for which he would have no redress, but if he was afterwards killed by the gross negligence of the railroad company without any fault on his part, the company are liable.
    2. Same—Imperfect machinery—No excuse.
    It was contended by the defendants that the engineer of the freight train had performed his duty in respect to stopping the train by reversing the lever and shutting off steam; and some evidence was given to show that the lever was liable to be displaced by the working of the machinery. Held, that a reliance upon a lever of this character in a matter of such importance is an act of the grossest carelessness.
    
      3. Same—When passenger who alights from train does not lose his-
    CHARACTER AS SUCH.
    A passenger in a railroad train by alighting from the cars at a regular station from motives of business, curiosity or for the purpose of obtaining refreshments, but intending to return and continue his passage, does, not cease to be a passenger or lose his right of being protected by the. regulation which the company have provided for the safety of persons: traveling in its cars and using its station grounds;, and if under such circumstance he is injured by the omission of the servants of the company to obey the rules adopted, the company is liable for injuries received in consequence thereof.
    4. Same — Public have a right to rely upon an observance of the
    rules.
    If a railroad company has by its own conduct and by its established regulations led the public to believe that trains would not run on its tracks, at specified times and places, persons having occasion to cross them have-the right to rely upon such assurance, and are not necessarily guilty of negligence when injured by prohibited trains while doing so.
    5. Same—Persons crossing tracks must exercise care and caution.
    The law does not forbid persons from crossing railroad tracks or impose upon them exclusive responsibility for damages incurred in making such-attempt; the question is whether the injured party exercised that degree* of care and caution which prudent persons of ordinary intelligence exercise under like circumstances.
    6. Evidence—Objection to—Remedy.
    Where evidence is already before the jury without exception, the remedy of a party who objects to its reception is to move to strike it out.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered on the verdict of a jury for the plaintiff.
    
      George C. Greene, for app’lt: Charles B. Wheeler. for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 1016, mem
      
    
   Ruger, Ch. J.

—The evidence in the case was, on some- • points, conflicting, but the jury were authorized to find, and, upon the defendant’s appeal, we must presume that they found the facts in conformity with the plaintiff’s, proof. By this it appeared that the plaintiff’s testator was run over and killed at the Ferry Street station in the city of Buffalo by the engine of a freight train, belonging to the defendant, moving southerly at the rate of from twenty to thirty miles an hour. He was a passenger on a train going northerly from the Exchange Street station, Buffalo, to La Salle and beyond and had travelled three miles of the distance when he reached the Ferry Street station where-the train was accustomed to stop for the purpose of taking on and letting off passengers. As the passenger train reached the station house, after it had been called by the brakeman, and while it was going slowly, but had not yet entirely stopped, the deceased stepped down from the second, car upon its westerly side upon a plank walk, or platform, and proceeded along by the side of the moving train for some forty or fifty feet when he attempted to cross over the westerly track. Before this the passenger train had entirely stopped. When he reached a point about ten feet from the passenger train, and being then between the rails -of the westerly track, he was struck by the engine of the freight train, which was backing down in a rapid manner. The whole transaction occured in front of the station house and within the station yard upon ground where passengers were accustomed to pass and repass in going from and coming to the trains. The rules of the defendant required freight trains to approach stations slowly and to stop before Teaching stations at which a passenger train is landing or receiving passengers. The freight train came from the north ana at the distance of about three hundred feet from the station was visible although partially concealed from the view of those standing at the station by a curve in the road and also by trusses upon a bridge over Ferry street running immediately north of the station grounds, which trains going south were obliged to cross before reaching the station. The deceased was when struck about twenty feet south of the bridge. He was seen walking quite rapidly to the north in the direction of the approaching train, when he turned and started to go across the track and as he saw the train, attempted to jump but failed to prevent a collision and was struck while in the act of jumping to avoid it. It did not appear for what purpose the deceased was going across the westerly track, but it was stated that he sometimes got off and communicated with relatives or friends who lived next the station yard on the west side, as he passed up the road.

As the deceased walked along the track he was necessarily looking in the direction from which the freight train was approaching, but no positive proof was given that he looked towards it immediately before he was struck, and it is not probable that he could have seen it if he had looked when he first alighted, or for some seconds thereafter. Hot to exceed ten seconds elapsed between the time when he alighted from the train, and that when he was struck, and during that time the engineer of the passenger train was •exhausting its steam, making a loud noise. The freight train was running probably at the rate of forty feet a second and when the deceased first alighted was probably beyond the line of his vision.

We are of the opinion that the case was in all of its re-respects one for the jury. The point made by the appellant that there was a variance between the cause of action proved and that laid in the complaint, is not well taken. The complaint stated all of the facts necessary to maintain the action and complied with the requirements of the Code in that respect. Evidence was given tending to support the allegations of the complaint and it was for the jury to' find whether they had been proved or not.

The contention that the negligence of the defendant, as alleged, consisted only of its omission to perform the duty which it owed to the deceased, as a passenger, is founded upon a misconstruction of the language of the complaint.

We think it immaterial whether the deceased, when he alighted from the passenger train, ceased to be a passenger or not. He was certainly neither a wrongdoer or trespasser by so doing. He might thereby have subjected himself to-increased risks, for which he would have no redress against' the railroad company; but if he should be afterwards killed. by the gross negligence of the company without fault on bis fault, the company would be liable. This was the case-stated by the complaint. The defendant also claims that, it was not negligent in running its freight train through the station at a high rate of speed while a passenger train was there engaged in taking on and landing passengers. This claim is mainly based upon evidence that the engineer in charge was temporarily disabled from controlling his engine by an accident received from the lever which slipped from its position after being reversed and struck him a. violent blow. The argument is that the engineer had performed his whole duty, in respect to stopping the train, by reversing the lever and shutting off steam. Some evidence-was given for the defendant by its employees that they were not cognizant of any means of retaining the lever in its place after being reversed, except what were in use on. this engine. Other experts, however, gave evidence tending to show that such an accident could not occur if the-lever was properly reversed, except from a defective appliance. It, however, requires no expert. to determine these' facts, for it is obvious to the most ordinary comprehension that a reliance upon a lever which is liable to be forced, from its place by the natural action of the machinery in a matter of such importance, is an act of the grossest carelessness. The remedies for such a fault are so numerous and common that they must be presumed to be within the-knowledge of all intelligent persons. We think it an alarming proposition to assert that a railroad company is to-be excused from the consequences of running trains at great speed through stations or in the streets of a populous city, because of an impossibility of its servants to control the powers which propel them. If this lever was hable to-be displaced by the working of the machinery, it was the plain duty of the engineer to hold it in its position until the .stoppage of the train had produced a compliance with his instructions and removed the danger. This would have required his attention for possibly ten seconds of" time. The negligence of the company in running its train, through the station at a high rate of speed is recognized by the rules of the company and is too obvious to require discussion.

A more difficult question arises over the allegation of contributory negligence on the part of the deceased. We do not think that a passenger on a railroad train loses his character as such by alighting from the cars at a regular station from motives of either business or curiosity, although he has not yet arrived at the terminus of his journey. It-cannot properly be said, we think, if a passenger leaves a train for the purpose of obtaining refreshments at a regular station, or transacting business during its stay there, but intending to return and continue his passage, he ceases to be a. passenger or loses the right of being protected by the regulations which the company have provided for the"safety of' persons traveling on its cars and using its station grounds. He may not stand upon the tracks or go thereon without-using the care and caution required of prudent .persons under the circumstances of the case; but if a person under-such circumstances is injured by the omission of the servants of the company to obey rules adopted for the protection of persons in that situation, we think it becomes liable for injuries thus received.

The rule which prescribes it to be the duty of persons to exercise care and caution in going upon railroad tracks and to use their senses of seeing and hearing for the purpose of.' discovering and avoiding dangers, is one frequently found-in reported cases, and, as a general rule, is salutary and just. But the duty of active vigilance must be adapted to-the circumstances of the case ana if the offending company has by its own conduct and by its published regulations, led the public to believe that trains would not be run on its-tracks at specified times and places, persons having occasion to cross them have the right to rely upon the assurance of' the company and are not necessarily guilty of negligence, when injured by prohibited trains while doing so.

The deceased was justified in supposing that no rapidly-moving train would come into the station while he remained in the yard and was engaged in communicating with his-friends on the west side. He had frequently done so before and had been lulled into a sense of security by the immunity which he had before enjoyed and the reliance which he placed upon the care exacted of its servants by the railroad company. It is quite doubtful whether he was able to see the freight train until he approached near the place ■where he started to cross the westerly track, as it was presumptively approaching at the rate of at least forty feet-per second, and. the jury were justified from the evidence in finding that he had looked in the direction in which he was walking and did not see the train. That he did not hear it is quite conceivable as the exhaust steam of the passenger engine made considerable noise, and the witnesses generally agree that no one saw or heard the freight engine until it got upon the bridge, and after that, it passed "the station in an instant of time. Having once looked and •seeing no train, he had a right to assume that none would be coming at such a rate of speed as would preclude him from crossing a single track.

It is probably true that if he had looked both ways at the moment of stepping upon the track he could have seen the .approaching train, but that might be said of almost every accident of a similar character, and is a degree of vigilance seldom adopted by any one and would require the impossible feat of looking in opposite directions at the same time, ■or anticipating the point from which he was to be assailed.

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.

We think the jury could properly find that the deceased did, under the circumstances of this case, exercise such care .and caution as exempted him from the imputation of negligence. Terry v. Jewett, 78 N. Y., 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id., 241; Archer v. N. Y. N. H. & H. R. R. Co., 106 id., 589; 11 N. Y. State Rep., 32. The defendant also claims that the court improperly allowed the plaintiff’s counsel to cross-examine the witness Marsh .and prove why he was discharged from the defendant’s •employ some eighteen months after the accident in question. The question objected to was; “What was the occasion of your going when you did go?” This question was competent on the question of the witness’s credibility and if competent for any purpose the objection to it was not well taken, although counsel claimed it to be admissible on .an erroneous ground. The witness did not answer this ■question; and the question was then put: “What was the ■occasion of your leaving the company’s employ?’ ’ This was not objected to and the witness answered, “ I was coming into Black Rock yard with a coal train and had a collision with a switch engine pulling off the branch with another train.”

Question: “Did they discharge you for it?” Answer: '“Yes, sir.” The defendant then made its objection and took its exception. The evidence was then already before the jury without exception and the defendant’s remedy was to move to strike the evidence out. This he did not do.

We think therefore the defendant did not raise the question properly; but if we were of the contrary opinion, we should not be inclined to reverse the judgment upon this ground. If the evidence tended in any way to injure the defendant it was upon the question of the negligence of the defendant. This was established by evidence beyond dispute and the testimony of this witness could not be said to have affected it. All of the evidence goes to show that the' defendant ran its train at a high rate of speed through a. crowded station in violation of its published rules.

There was practically no question for the jury in respect-to the question of the defendant’s negligence.

The case was submitted to the jury upon a charge eminently favorable to the defendant and we think it had no reason to take exception to it.

■ Some few other exceptions were taken to the rulings of the trial court in the admission of evidence, but we think no errors were committed which authorize the reversal of. this judgment.

The judgment should therefore be affirmed.

All concur, except Earl and Gray, JJ., not voting.  