
    Michael H. Moore, an Infant, by Michael C. Moore, Guardian ad Litem, Respondent, v. Coney Island and Brooklyn Railroad Company, Defendant, Impleaded with Long Island Railroad Company, Appellant.
    Second Department,
    June 11, 1909.
    Railroad — negligence — collision at crossing — evidence — ownership of train — presumption.
    Where in an action to recover for personal in j uries caused by a collision between a trolley car in which plaintiff was riding and a railroad train at a grade crossing, it appears that the train approached the crossing, partially hidden from view by fences, at a fast rate of speed and without signals or bell, a question of fact is raised as to the negligence of those operating the train, although there w.as a flagman at the crossing, and the conductor of the trolley car had gone ahead and was directing his car by signals. '
    
    Where the defendant by’its answer admitted that it maintained and operated a steam railroad, which crossed the street on which the accident occurred, and it is shown that no railroad crosses that street except at the point where the accident occurred, there is sufficient evidence to justify a conclusion that the train' was being operated on defendant’s track and the presumption is that it was owned by 'the defendant.
    Hiller and Woodward, JJ., dissented, with opinion.
    Appeal ■ by the defendant, the Long Island Railroad Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered on October 1, 1908, in an action for personal injury.
    
      
      William C. Beecher, for the appellant.
    
      Leonard J. Reynolds [Frederick B. Bailey with him on the brief], for the respondent.
   Rich, J.:

The appellant operates a steam railroad in the borough of Brooklyn, which crosses Coney Island avenue at grade. The defendant Coney Island and Brooklyn Railroad Company operates a trolley road through Coney Island avenue, its tracks crossing those of the appellant at grade. Approaching this crossing on the trolley road, a view of the steam road" is cut off in places, and obstructed at others, by a high board fence along the tracks. At the time of the accident the plaintiff, an infant, accompanied by his mother and other members of the family, was a passenger upon one of the cars of the trolley company. A train of Sat cars, loaded with dirt, was being backed toward the crossing on the tracks of the appellant as the trolley approached. A flagman at the intersection, having in his hands a red and á white flag, waved the red flag parallel with the tracks upon which the trolley was approaching and across the tracks of the steam road, and .the car came to a full stop. He then dropped the red flag to his side, turned his back to the trolley car and waved the white flag in a direction parallel to the tracks of the steam road and across the tracks of the trolley road. In the mean* time the conductor of the trolley car walked to the crossing anc\ signaled his motorman to come ahead. After the car started the conductor motioned for it to stop, and the flagman said, “ For God’s sake, keep back.” The motorman, however, increased the speed of the car, and went upon the crossing, where it was struck by the dirt train and the plaintiff received the injuries for which he has been permitted to recover. Ho evidence was given by the appellant. The trial court dismissed the complaint on the merits as against the trolley company, and rendered a judgment against the appellant, from which this appeal is taken.

It is first contended that there is no evidence establishing that the appellant operated the dirt train or the tracks upon which it was being run. The answer to this is that its answer admits that it maintained and operated a steam railroad in the borough of Brooklyn which crossed Coney Island avenue in said borough at grade.' There is evidence that no railroad in Brooklyn crosses Coney Islan'd.avenue except the one upon which the dirt train was being operated, which is sufficient to sustain the conclusion that the track upon which the dirt train was being operated was the track maintained and operated by the appellant. No presumption could obtain that any other railroad company ran its cars over the appellant’s tracks. The presumption is to the contrary, and it was not incumbent upon the plaintiff to show that the dirt train was owned or operated by the appellant., (Jennings v. Brooklyn. Heights R. R. Co., 121 App. Div. 587.)

It is- next contended that there is no evidence to show that the flagman stationed at the crossing was in the employ of the appellant or to charge it with his acts or omissions. Conceding this, the fact remains that the dirt train approached the crossing, hidden from view by fences, at. a fast rate of speed and without signals by whistle or bell. Under the authority of Robson v. Nassau Electric R. R. Co. (80 App. Div. 301) this raised a question of fact as to the negligence of those operating it. I think there is sufficient evidence upon this question to sustain the judgment. Conceding that the evidence was sufficient to warrant a finding of negligence on the part of the employees -of the trolley company, this does not relieve the appellant- from the effect of its concurring negligence or furnish a defense to the plaintiff’s cause of action. The questions of the-greater degree of negligence as between the defendants, or whether or not the trial court erred in dismissing the complaint as to the trolley company, áre not before us and cannot be considered.

The judgment of the Municipal Court must be affirmed, with costs.

Jenks and G-aynob, JJ., concurred; Miller, J., read for reversal, with whom Woodward, J., concurred.

Miller, J.

(dissenting):

This judgment should be reversed because the credible evidence shows that the' accident'was not caused by the negligence of the appellant. - The flagman at the crossing was w'aving a white flag across the tracks of the trolley road at the time the motorman started to cross the appellant’s tracks. While we all know that that signal is commonly employed at railroad crossings to give warning of the approach of trains, some doubt seems to have been created at the trial respecting the meaning of it; and it does not appear, except possibly by inference, whose servant the flagman was. However, it is undisputed that the trolley car was stopped at least twenty feet from the tracks of the steam road, and that the conductor went ahead to where he had a. plain view of the appellant’s tracks in both directions. The plaintiff’s evidence is that he both signaled and called to the motorman to stay back. He and the motorman both testified that he gave the signal to go ahead. He had a plain view of the approaching train and admits that he saw it about a block away. The obstructions of the view from the highway, therefore, had nothing to do with the accident, and no negligence can be attributed to the appellant from the fact that the train was backing eastward on the west-bound track. It had the right to run its trains to suit its convenience, using, of course, the care required by the situation. The blowing of the whistle and the ringing of the bell could only have warned the conductor of what he saw, i. e., the presence of the train; and it is difficult to see, therefore, how the failure to ring the bell or blow the whistle caused the accident. Although the train went the distance of a block while the trolley car was going a little more than twenty feet, the conductor testified that he thought the train was standing still. Undoubtedly, the fact was that he thought the trolley car had time to cross ahead of the train. At any rate, his statement that the train appeared to be standing still is too improbable to be credited by us, even if it was not incredible as a matter of law. The case then is this: Either the motorman went ahead regardless of the signal of the conductor to stay back, or the conductor signaled- him to go ahead regardless of the fact that a freight train, only a block away, was backing towards the crossing. The justice dismissed the complaint as to the trolley company and gave judgment against the appellant, two rulings equally difficult to understand.

The judgment should be reversed.

Woodward, J., coúcurred.

Judgment of the Municipal Court affirmed, with costs.  