
    Abram Frederick, Appellant, v. The Fonda, Johnstown and Gloversville Railroad Company, Respondent.
    
      Negligence— crossing railroad tracks slowly with a hea'oy load, without looking after passing ( point twenty-five feet from the tracks.
    
    In an action brought to recover damages for personal injuries, sustained by the plaintiff while driving at a slow walk a sleigh loaded with ice over the defendant’s railroad track at a point where it crossed a city street, it appeared that the plaintiff, when about 25 feet east of the track, which could there be seen to the north for a distance of about 1,500 feet, looked to the north, but neither saw nor heard any train or any warning signal; that he then proceeded to cross the track without again looking to .the north, and that while his team was pulling the sleigh across the track he saw, about 750 feet distant, a train coming from the north, which had given no signal of its approach; that a man, who was riding with the plaintiff, jumped from the sleigh and escaped injury; that the plaintiff did not jump but attempted to get the sleigh over the track in safety; that the horses cleared the track, hut that the sleigh was struck, in consequence of which the plaintiff was injured.
    There was evidence tending to show that the train was running very fast at the time, and passed over the entire distance, at which it could be seen from the crossing, in ten or twelve seconds, and that the progress of the plaintiff’s team was slow owing to the weight of the load, the bareness of the ground and the fact that it inclined upward toward the railroad track.
    
      Held, that it was error to dismiss the complaint;
    That the questions of the defendant’s negligence, and the plaintiff’s freedom from contributory negligence, should have been submitted to the jury.
    Appeal by the plaintiff, Abram Frederick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 27th day of February, 1900, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Fulton Trial Term.
    
      M. D. Murray and Andrew J. Nellis, for the appellant.
    
      A. D. L. Baker, for the respondent.
   Merwin, J.:

The track of the defendant crosses Mason street in the city of Johnstown. About noon on January 18, 1899, the plaintiff, with a team and sleigh loaded with ice, was driving westwardly°along Mason street, and, as lie was in the act of crossing the defendant’s track, a.train of the defendant coming from the north collided with his sleigh, destroying the sleigh and its load and injuring the plaintiff. For the injuries there received the plaintiff in this action seeks to recover damages upon the ground that the collision was the result of the negligence of defendant.

The situation, as the evidence tends to show and as the jury might have found, was substantially as follows:

The plaintiff, as he approached the crossing,.was driving at a slow walk. He was sitting on the front of his sleigh, on the right-hand corner of his load, one foot down near the evener and the other on the outside. A man by the name of Nellis was on the load with him. He was standing on the side of the sleigh,, about two feet behind the plaintiff, and holding on to a stick in the rig. When the heads of the horses were about twenty-five feet from the east side of the track the plaintiff, and also Nellis, looked to the north up the track. They could see the track for. a distance of about 1,500' feet. Neither one saw or heard any' train or heard any bell or whistle. They proceeded on, the plaintiff paying attention, to his team. There was some bare ground on the crossing and some ice. There is an ascent of five or six inches in the roadway as it proceeds up to the track. When the horses were partially over, and were pulling the sleigh upon .or. across the track, the plaintiff saw the train coming. It was then, as he says, near the meat house, which was conceded to be 150 feet distant from the center of Mason street. The plaintiff, as he saw the train, called out to Nellis that it was coming. Hellis looked and immediately jumped, striking first between the rails, and then jumping to the east side. The plaintiff did not jump, but tried to get his horses and load over. The runners were stuck on the east rail or were dragging before the train, was seen. One horse had slipped, partially falling, and had recovered. It is not claimed that the horses were injured, so that they must have been entirely over the track before the collision. According to the evidence of Nellis, the train struck the sleigh almost immediately after he jumped. It was coming at a very rapid rate.

A witness, who watched its approach over the whole distance at which it could be seen at the crossing, testifies that it passed over that lfSOO feet in' not over ten or twelve seconds. There was évideuce that it ran as- fast again as usual. It was on a descending grade, the descent in the 1,500 feet being 30 feet. Within half a mile of its approach there was no signal of its coming until just as the collision occurred. A witness testifies that the sounding of the bell, the blowing of the- whistle and the crash at Mason street were all one thing.

The trial court, in granting the nonsuit, held in substance that the plaintiff, in looking up the track but once before he started to ■cross, did. not perform his whole duty; that he should have looked again before the horses entered upon the crossing, and that if he had done so, he could have seen the approaching train and stopped.

Whether or not the plaintiff, had he looked again before the horses entered upon the crossing, could have seen the train, was, upon the evidence, a question of fact. One of the witnesses testified that, when the horses were on the track, he saw the train up by Topp’s factory and this was conceded to be 1,400 feet from the crossing. If this evidence was true, and it was for the jury to say whether it was so, then the jury might have readily found that the train was not in sight at any time before the horses started to cross. It would take only a second or two for the train, at the speed it was going, to pass over the space beyond Topp’s factory and within the range of vision. It would take much more time, as the jury might infer, for the horses, walking slowly with a heavy load over bare ground, to pass up the incline and forward sufficiently to place themselves upon the track.

If the plaintiff could not have seen the train, had he looked the second time, his failure to look was not contributory negligence. The question whether a party looks at the right place is ordinarily one for the jury to determine. (Wilber v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 138, and cases cited; O'Bierne v. N. Y. C. & H. R. R. R. Co., 37 id. 547.)

Whether the plaintiff was careless in not jumping, when Nellis did, was a question of fact.

The court, we think, erred in holding that the case as made by the plaintiff was not sufficient to carry to the jury the question of contributory negligence.

The question whether the collision was the result of negligence on the part of the defendant was also a question for the jury, in view of the rate of speed as it might have been found (Zwack v. N. Y., L. E. & W. R. R. Co., 160 N. Y. 362) and the absence of warning signals. Had the speed been at the usual rate, the plaintiff might have succeeded in getting across. The load, was heavy, but there was proof that the team was able to move the load, though slowly, even across the bare rails. We cannot say, as matter of law, that the plaintiff had no right to try to cross. Had there been proper signals, plaintiff himself might have escaped though the sleigh had been .struck. The judgment must, we think, be reversed.

All concurred.

Judgment reversed on the law and facts, and new trial granted,, costs of appeal to the appellant to abide the event.  