
    Joseph Klinczyk, as Administrator, etc., of John Klinczyk, Deceased, Appellant, v. The Lehigh Valley Railroad Company, Respondent.
    Fourth Department,
    July 9, 1912.
    Railroad — negligence—injury at grade crossing — contributory negligence — negligence of person not driving vehicle.
    Action to recover for the death of a person who, while being driven across a railroad track in a vehicle, was struck by defendant’s train. Evidence examined, and 7leld, that the plaintiff failed to show that the intestate was free from contributory negligence. ■ • -
    
      Although the intestate was not driving the vehicle, but was seated at the side of the driver,, he may be ¿barged with contributory negligence, where he had the more convenient view of the approaching train, and was superior in authority to the driver, so that he could have ordered him to stop.
    Appeal by the plaintiff, Joseph Klinczyk, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of March, 1911, upon the dismissal of the complaint by direction of the court on a trial at the Erie Trial Term.
    
      Hamilton Ward [John J. Brown with him on the brief], for the appellant.
    
      James McCormick Mitchell [Kenefick, Cook, Mitchell & Bass with him on the brief], for the respondent.
   Robson, J.:

Between five-thirty and six o’clock in the afternoon of March 7, 1910, plaintiff’s intestate, aged between eighteen and ninéeen years, seated on the left side and at the front of a covered baker’s wagon drawn by a tractable single horse which was driven by a companion seated at his right, while proceeding southerly at a walk along a highway near the city limits of Buffalo was killed at the grade crossing of defendant’s northerly or west-bound track and the highway in a collision with defendant’s west-bound passenger train then running at a speed of fifty miles an hour. The wagon seems to have been one of the ordinary, covered, delivery class, the top extending over the seat in the forward end, open in front, and with rigid sides in which were windows at convenient height for observation either to the right or left. The driver, Wadyslaus Klimaszcwski, though injured, still survives the accident. They were both employees of John Kukulka, the owner of the horse and wagon, deceased being Kukulka’s foreman and the driver his deliveryman. Both seem to have been entirely familiar with the place and its surroundings. The day was dark and cold with light flurries of snow and a wind blowing from the west with a velocity of twenty-five to twenty-seven miles an hour. Four witnesses who were near the scene of the accident and observed the progress of the wagon towards the crossing, three of whom saw the actual collision, were sworn. Their position was in front of or near a trolley shelter of the Lancaster and Buffalo line located about 700 feet from, the scene of the accident; and as intending passengers on this line they were awaiting the arrival of a car from the south, the trolley line construction being at this point along the highway. These witnesses saw the two men in the wagon pass towards the south. South of the station of the witnesses the highway is crossed at grade by the tracks of. three railway lines. The northerly tracks, three in number, are those of the Delaware, Lackawanna and Western railroad; next the Erie’s two tracks, and lastly defendant’s two tracks. All these tracks are substantially parallel, running substantially east and west-crossing the highway at an angle to the northeast slightly less than a right angle. Between the Lackawanna and Erie tracks is located the huge covered Lackawanna coal trestle, which extends from the highway nearly a mile to the east, the highway passing under the west end of the open trestle. No view to the'east of the tracks south of the trestle can be had from the, highway until a point in line with the south side of the trestle is reached. From that point, however, the view is open, the country being level and the railroad tracks straight in both directions for many thousand feet. Measured along the center line of the highway the distance from its intersection with the south line of the trestle extended to the first or north rail of the Lehigh west-bound track, being the track on which the collision occurred, was three hundred and five feet. The distance between the south rail of the Erie tracks and this north rail of the Lehigh track is sixty-five feet. - In the space between these-rails and east of the highway there is a double row of telegraph poles, the poles being of the usual size, and a building, called the tower, which are the only obstructions to the view to the east from the highway south, of the line of the trestle. • This tower was two stories in height with a stairway-on the north side three feet in width; the west face of the tower measured twelve and one-half feet and the south face twenty and one-half feet. The distance of the west face of the tower from the center line of the highway was fifty-one feet. From' the south face- of the tower to the north rail of the Lehigh track measured at right angles is twenty-one and one-half feet and from the intersection of the line of this face of the tower, extended westerly, with the center line of the highway, measured southerly along this center line to the north rail, is twenty-three feet eight inches. Therefore, after passing the Lackawanna trestle and before reaching the tower deceased and his companion while passing south along the highway had for nearly two hundred and fifty feet of their journey a practically unobstructed view to the east; and after passing the tower and while traversing the twenty-three feet and eight inches to the first rail of the track nothing whatever obstructed their view. It is claimed by plaintiff that it was then getting dark and there was snow in the air and the wind blowing fiercely; but no witness had any difficulty in seeing the wagon and following it with the eye while it covered the distance after passing the shelter to the point of the collision, or in clearly seeing the train where it stopped after the collision at least a quarter of a mile from the crossing. It also appears that the sun had not set at the time. There was nothing by way of other passing trains, noises, smoke or other temporary obstructions except those I have already adverted to. The mere description of the physical situation and surroundings must lead to the inevitable conclusion that plaintiff was not shown free from contributory negligence by any legitimate inference to be drawn therefrom. Appellant’s counsel, though controverting this necessary conclusion, relies largely upon the accepted relaxation of the rigid requirement of proof of absence of contributory negligence in death cases, which, in view of some further facts to which I will now advert, it is claimed would permit a jury to infer that the deceased was not negligent. Through no apparent fault or omission of either party to the action, the driver of the wagon was not available as a witness. From the testimony of the four witnesses, to whom I have referred, it might be found that the wagon was stopped just before reaching the Delaware, Lackawanna and Western tracks, again before reaching the Erie tracks and also just before the attempt was made to cross the track upon which the accident happened, Three witnesses testify that the wagon stopped before going upon the Lehigh track. The distance from the track where this stop was made is estimated variously at from four to twenty feet. If a stop was made at either distance, it is apparent, that the train which collided with the wagon was in plain sight of plaintiff sitting, as he was, on the side towards which the train was coming, for they had then gone beyond the tower. But it is claimed that, as deceased was not in physical control of the movement of the horse and wagon, an inference may be drawn that when the wagon stopped in a place of safety he could not be held responsible as matter of law because it was immediately driven forward and that the stop itself indicates an appreciation of the surroundings and the exercise of some care on the part of the occupants of the vehicle. The case of Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199) is the chief reliance of counsel for appellant on this point. . In that case plaintiff’s intestate was riding with her husband, who was driving. One of defendant’s trains collided with the vehicle in which they were riding, and both viere killed. In their immediate approach to the track their view was unobstructed. The husband was clearly guilty of "contributory negligence, which the court held was not under the circumstances imputable to the wife. The vehicle was not stopped, but the horse was seen by witnesses to have been apparently going at a much greater speed as it approached the crossing in an apparent attempt to cross ahead of the train. The court held that either one of two inferences could be drawn from the facts. First. That the wife did not see the train. In which case she was guilty "of contributory negligence. Second.. That she did see the train, but did not, and was not called upon to anticipate that the husband would make the attempt to cross until it was too late for her to avoid the consequences of his imprudence. The court says she was not then obliged to jump from the carriage or seize the reins and that it cannot be known that she did not implore him to stop. It was this second possible inf erence.from the facts that in that case made a question of fact for the jury. But the case we now have presents none of these features. True, plaintiff’s intestate was not driving'; but his apparent authority was superior to that of the driver,, for he was the foreman of their common employer. He was seated on the side of the wagon from which the best and most convenient view could be had of the approaching train. The horse stopped and started up, not suddenly, but at the same easy walk at which it had previously gone. A word of warning or a touch upon the reins would have stopped the horse while still in a place of safety and the accident would have been averted. b¡ o inference of a sudden independent decision of the driver to try to beat the train across is permissible as it was in the Hoag case. The case of Noakes v. N. Y. C. & H. R. R. R. Co. (121 App. Div. 716; affd., 195 N. Y. 543), in which a girl of sixteen seated in an automobile was injured in a collision at a grade crossing and a recovery of damages sustained, is not in point, for her contributory negligence depended upon considerations of the age of plaintiff, her position in the vehicle and her relations to those in the management and control of its operation, which in that case it was held presented a question of fact for the jury to pass upon.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with.costs.  