
    Annie E. White et al., Adm’rs, App’lts, v. The New York Central & Hudson River Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Railroad—Negligence.
    While plaintiffs’ intestate was walking with his wife on defendant’s tracks across a bridge, and when about the middle thereof, he was struck and killed by the locomotive of a passenger train. The bridge was 115 feet long, 8 feet wide and 18 feet above a stream. The track was straight for 2,000 feet and there was nothing to obstruct the engineer’s vision. Held, that if intestate was in such a position that he could not safely get off the track, and the engineer saw his situation, the engineer was bound to make a reasonable effort to avoid running him down, and that the facts shown, without explanation, entitled plaintiffs to go to the jury, and it was error to non-suit.
    Appeal from judgment in favor of defendant, entered on non-suit, and from order denying motion for a new trial.
    Action to recover damages for the death of plaintiffs’ intestate, alleged to have been caused'by defendant’s negligence.
    
      A. M. & G. Card, for app’lts; Frank Loomis, for resp’t.
   Cullen, J.

—This is an appeal from a judgment in favor of the defendant entered upon a non-suit at circuit. The plaintiffs’ intestate and his wife (one of the plaintiffs) were walking upon the defendant’s track. Upon arriving at the middle of a bridge about 115 feet long, the deceased was struck by the locomotive of a passenger train coming from the rear and killed. The deceased was undoubtedly a trespasser upon the track, but that fact is not necessarily a bar to this action. The rules of law applicable to the case seem authoritatively settled by recent decisions. On the one hand an engineer is not bound to stop his train the moment he sees some living object on the track. He has the right to assume that the object will leave the track in time to escape injury. Chrystal v. Troy & Boston R. R. Co., 105 N. Y., 164; 6 St. Rep., 833; Burnes v. Staten Island R. T. R. R., 44 id., 271.

On the other hand if the engineer saw that the deceased was in a place of peril he was bound to use reasonable diligence to avoid injuring him. Remer v. Long Island R. R. Co., 36 Hun, 253, affirmed 113 N. Y., 669; 23 St. Rep., 994; Chrystal, v. Troy & Boston R. R. Co., supra.

The vital question presented on this appeal is, therefore, was the deceased in such a position that he could not safely get off the track. If he could, he was bound to do it, and the engineer had the right to assume that the deceased would so act. But if the deceased could not safely leave the track, and the engineer saw that he was in a position of danger, he was bound to make a reasonable effort to avoid running him down. The bridge upon which the deceased was struck was of the pattern known as a deck bridge, eight feet wide and from fifteen to eighteen feet above the stream which it spans. This width was insufficient to enable the person to stand with safety and avoid a passing train, though as a matter of fact the wife did by falling down and rolling to the side escape injury. The height of the bridge above the stream was such as to render it extremely hazardous to jump off. We think this situation at least presented a question of fact for the jury to pass upon as to whether the deceased was in a place of peril and whether the engineer should have recognized it as such.

This question of fact alone, if found in her favor, would not have entitled plaintiff to a verdict. She was bound to show further that the engineer saw the position of the deceased, and made no effort to avoid injury. The evidence of the plaintiff was to the effect that no warnings were given and nothing done to slow of stop the train until after the accident.

There is no evidence in the case as to whether the engineer actually saw the deceased, the complaint having been dismissed at the close of the plaintiff’s testimony, but the location of the track was such that the jury might infer that fact, at least in the absence of any evidence to the contrary. The train approached the bridge from the north; the track on the bridge and for two thousand feet to the north of it was perfectly straight; there was nothing to obstruct the view and the accident occurred in the day time. Evidence was also given tending to show that the train could have been stopped within a distance of 500 or 600 feet We think the case made by the plaintiff, in the absence of explanation on the part of defendant, entitled her to go to the jury. It may be that an explanation might be given such as to make it the duty of the court to withdraw the case from the jury. But in the absence of such explanation, we think that the disposition at circuit was erroneous.

cThe judgment and order denying new trial should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs; Barnard, P. J., not sitting.  