
    William J. Turck, Jr., as Administrator, etc., of Harry L. Turck, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence -r- collision between an automobile and a train at a railroad, crossing — failure of proof of freedom from contributory negligence.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, who, while riding in a southerly direction in an automobile. over the defendant’s double-track railroad at a highway crossing, was struck arid killed by one of the defendant’s south-bound railroad trains, it appeared " that the highway ran northeasterly and southwesterly and the railroad north and south, crossing the highway at an angle of about twenty-seven degrees; that the view of the south-bouhd track towards the north obtainable by the occupants of a vehicle approaching the crossing from the north, as did the N automobile, was obstructed in some degree by fences, telegraph poles, trees and other obstructions, but that at a point in the highway 100 feet from the nearest rail such a person could obtain a view of the south-bpund track to the’ north for 340 feet, and that such view increased as the1 crossing was approached until at a point 22 feet therefrom the south-bound track could be seen for a distance of about two miles north of the crossing; that the occupants of a suiv rey, which was traveling along the highway in advance of the automobile, saw the south-bound train as they approached the crossing and crossed in safety.
    The occupants of this surrey, testified that before reaching the crossing they heard the horn of the automobile, and, upon looking around, saw the intestate and his companion talking together, but did not see either of them look for an approaching train. No one saw the deceased and his companion again until the instant the collision'occurred, When Ithe intestate and his companion were ' both seen to be looking up at the headlight of the. locomotive.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed upon the ground that the evidence not only failed to show that the intestate was free from contributory négligence, but tended to shoW affirmatively that he was guilty of such negligence;
    That it Was the clear duty of the intestate to be on the lookout for an approaching train-as he entered upon the crossing,, and that if the- presence of a northbound freight train, which passed over the crossing immediately prior to the south-bound train, interfered with his view of the south-bound track, it was his duty to wait until the north-bound freight train had passed..
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, fróm a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of .the county of Hlster on the 10th day of April, 1905, upon the verdict of a jury for $15,000, and also from, an order entered in said clerk’s office on the 6th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Amos Van Etten, for the appellant.
    
      Howard Chipp and W. N. Gill, for the respondent.
   Parker, P. J.:

The action was brought to recover damages for negligently causing the death of the plaintiff’s son. On the evening of July 25, 1903, the plaintiff’s son, Harry L. Turck, a young man nineteen years of age, and in possession of all his faculties, while riding in an automobile with another young man of about the same age, was struck , and killed, by a passenger train on the defendant’s raih’oad at a grade crossing just north of the city of Kingston. His companion also died as the result of injuries then received.

The highway upon which the accident occurred is a public highway known as the Saugerties road, and is a continuation of Albany avenue, one of the principal streets of said city. It is well paved and is much traveled, especially in the summer, being one of the principal pleasure drives of the people of Kingston. The defendant’s railroad crosses the Saugérties road at an acute angle of about twenty-seven degrees twenty-four minutes; the highway is about fifty feet wide and runs northeasterly and southwesterly, and the railroad runs north and south. At this crossing there are double tracks. The train that struck the deceased was a regular train, but on this evening it was some twenty or twenty-five minutes late, and was running at a high rate of speed on a down grade southerly towards Kingston on the south-bound track, and a freight train, consisting of some thirty-eight cars had just passed over this crossing northerly on the north-bound track.

North of the crossing a tight hoard fence eight and one-half feet high runs along the westerly line of the highway for a distance of 763 feet, to within 140 feet from the nearest or easterly rail of the tracks,.and then turns at an obtuse angle and runs for a distance of 40. feet to the easterly line of the railroad and thence northerly along such easterly line for a further distance of 723 feet. Approaching this crossing from the north, the direction from which the deceased approached it, this fence, of course, obstructs the view of the railroad to the north. But at the end of the fence upon the highway, which, as above stated, is about 140 feet from the tracks, a view northerly of the crossing may be had for perhaps a couple of hundred feet. At a point in the highway, 100 feet from the nearest rail, a view may he had of the south-hound track for 340 feet northerly of the crossing. At a point 60 feet from such nearest rail a view of such track may be had for a distance of fully 1,300 feet, which view increases as oiie approaches the crossing until at a point in the highway 22 feet from such nearest rail the track may be seen for more than two miles northerly. Gates are operated at this crossing between seven o’clock a. m. and' seven o’clock p. m. only, and at the time of the accident, which occurred shortly after eight o’clock, the gates were up and it was becoming twilight.' However, the. view to the north is to some extent obstructed by the presence of the gate, a sign post, a wire fence and posts running from the railroad along the highway to the board fence, a cattle guard and a telephone pole, and at certain points hy a line of telegraph poles and some trees on the easterly side of the railroad along the board fence. But these, obstructions are evidently more apparent than real. True, a person directly behind the telephone pole, which was 18 inches in diameter, could not see the track at all, and at a certain point in-the highway the line of telegraph poles would form one continuous line of obstruction, but at either side of such points the view would again become clear. To the south, also, the railroad is evidently straight, but the respondent contends that thé view thereof in that direction is obstructed by a flagman’s shanty, a railroad gate, a small building (resembling a toolhouse) and by trees. To what extent these obstruct a view of the track does not clearly appear, but they certainly cannot excuse the exercise of diligence in watching out for trains approaching from the opposite direction.

At the time of the accident the deceased was driving the automobile, and was seated on the left side. It was a low machine, with but one seat, and the top of the cushion on the seat was only three and one-half feet from the ground* The machine was about six feet long, and was of the kind commonly known as a “ runabout.” The deceased was accustomed to running the machine, having driven it a great many times — almost daily; and xhe was undoubtedly familiar with the crossing and with the highway, which on either side of the crossing for a considerable distance is straight. Approaching the crossing from the north, however, there is a slight rise in the highway. As the deceased approached the crossing, Dr. Sahler, his wife, and Mrs. Gallagher were driving ahead of him in a snrrey drawn by a team of spirited horses. They heard the honk of the horn on the automobile, and Mrs. Sahler and Mrs. Gallagher looked around and saw the two young men in the automobile talking together, but they did not then see either of them look for an approaching train; and it is not clear that looking at that time would have been availing. No one again saw them until the team had passed over the crossing and the train was upon them, when they were both seen to be looking up at the headlight of the engine, and at this instant came the crash.

There is a conflict of evidence as to whether any warning was given of the approaching train, and also as to its speed at that time; and upon the question of the defendant’s negligence the conclusion of the jury should not be interfered with.

But the remaining question, and the serious one to be considered is: Did the plaintiff establish by a fair preponderance of evidence that his intestate.was free from contributory negligence, or was the finding of the jury to that effect against the weight of evidence ?

It was the clear duty of the deceased to watch out for an approaching train as he entered upon the crossing. If the passing freight train obstructed his view so as to render it unsafe, it was his duty to delay his crossing until that train had so far passed as to render his view a safe one. Such an obstruction was manifestly a temporary one, which required but a slight delay on his part to be entirely removed. (Purdy v. N. Y. C. & H. R. R. R. Co., 87 Hun, 97; Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 500; Waddell v. N. Y. C. & H. R. R. R. Co., 98 App. Div. 343.) With such a situation confronting him, and such duties before him, he evidently followed closely upon Dr. Sahler’s -entrance upon the crossing, and whatever the doctor was able to see of the approach- ■ ing train we must conclude the deceased was able to see had he looked for it with the same care which the doctor used and which his duty required. Now, we are told by the doctor that he did not see the approaching train-until just as he was about to enter upon the north-bound track. Just how far he was from that track when he Ijegan to look for it' does not appear ; but at all events he was. able to see it before his horses got so close to the south-bound track (which was the one on which the train was coming) that they could be hit by it, because he tells tis thát if he had had his- other team he would have stopped them and allowed the train to pass before he crossed. But with- the restive team which he did have, he thought it-safest to cross ahead of the train, thus indicating that when his horsés entered upon'the first track he saw the train so. far off that he judged he could drive across both tracks in time to clear it, but also thought it was a hazard to attempt it. He just succeeded in clearing the train. Now, the deceased, who was just behind him, either did not see the train at all, or else misjudged its distance and was caught in a deliberate effort to also drive over ahead of it. There' ^ was no fractious team, to force him to cross ahead of the train or to put him-to a quick judgment as to which was safest to do. He could stop his machine quicker and in a shorter space than the team could be- stopped, and when stopped it would stand steadily and in safety on the very northbound track itself. A deliberate' attempt, to cross ahead of that train was, beyond all doubt, gross carelessness . on the part of the deceased. If, however, it be said that his attempt was not deliberate, but that the train got upon him before he saw it, we cannot but conclude that he did not use that care in looking for it that he should have used. There is no reason shown, nor can wé conceive of any, why he wopld not havé seen the train, had he looked, at least as soon as the debtor saw it. Indeed, from the locality and .situation, as above stated, a reasonably careful ■ outlook for an •approaching train would have disclosed the one approaching in a’mple time for the doctor to have stopped his team and held it at a safe distance from the crossing until such- train had passed. At- a distance of twenty feet or more from the first rail there was practically an unobstructed view for two miles or more to the north up the south-bound track. ' Such being the case, it is clear beyond a doubt that the deceased did not' attempt' that crossing with that 1 care arid watchfulness wh'ich -his duties required from him. There, is not only a failure to show freedom from contributory negligence on the part of the deceased, but the evidence points very distinctly to actual negligence on his part that contributed to his death.

I conclude that the judgment and order must- be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  