
    Edward Donnelly, Resp’t, v. The Brooklyn City Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 13, 1888.)
    
    1. Negligence—Contributory negligence — Driving on railroad TRACK
    On the trial oi an action tor damages for injuries received in a collision of the defendant’s engine with the horse attached to the wagon in which plaintiff was riding, the collision was alleged to have resulted from the-negligence of the defendant. It appeared that the plaintiff and another were driving along a certain avenue on the tracks (on which were run by defendant, trains of cars drawn by dummy engines) late upon a dark night, at a place in the avenue where they knew a train was about due, with space of road on either side of the tracks to drive upon, and that they deliberately turned upon the track on which they expected a train to approach. After they had gone on the other track they heard and saw the approaching train, but were dilatory in endeavoring to avoid the impending danger. Held, that the plaintiff was guilty of contributory negligence and was not entitled to recover.
    2. Same—When one changeable with negligence of dbiveb of VEHICLE IN WHICH HE IS BIDING.
    The plaintiff’s companion was driving. The two were engaged in a, common employment. Plaintiff was concious of the danger, and, though he had full control of his own actions, made no objection to what was done and no effort to avoid the danger. Held, that he was chargeable, with the neglect of his comrade. Distinguished from Masterson v. H. T. O. and H. S. S. U. Go., 84IST. Y., 247, and other cases cited. Andbews, Danfobth and Peckham, JJ., dissenting.
    Appeal from, a judgment of the supreme court, general term, second, department, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury rendered, at the circuit court.
    
      Samuel D. Morris, for app’lt; Charles J. Patterson, for resp’t.
    
      
       Reversing 89 Hun, 657, mem,
      
    
   Gray, J.

—The facts proved on the trial of this action did not warrant the submission of the case to the jury.

It was shown on the plaintiff’s part that he was charge - able with neglect to act in such manner as to avoid the-danger.' The plaintiff, with one McNally, had driven in from Fort Hamilton, where they were employed, to the city of Brooklyn, in the evening, in a wagon drawn by one horse, with a load of fish for market. They set out to-return about midnight and took the route of an avenue on which were two tracks of the defendant, upon which were run, either way, trains of cars drawn by dummy engines. These tracks were laid in the middle of the avenue and on either side was an ordinary dirt road of sufficient width for the passage of vehicles. NcNally was driving and plaintiff was sitting by his side. They had been on the right 'hand railroad track, when hearing a wagon approaching, which they judged to be loaded, they turned to the left hand and drove upon the other track used by trains going towards-Brooklyn. They had not been long there when they heard and saw coming towards them in the distance a dummy engine. We give the plaintiff’s description of how they knew of the approach of the engine. On his direct examination he was asked, after stating how they came to taka the other track and then endeavored to get back on their former track:

“Q. How far did he” (referring to McNally) “go that way trying to pull himself out, to the right?” A. He must have gone somewhere, I think, about fifty feet nearly; didn’t notice anything then; I noticed the railroad car when it came pretty near.

Q. What did you notice.? A. The light of the dummy, the torchlight upon the boiler, whatever you call it.

Q. Was your attention attracted to the dummy by hearing it or seeing it ? A. I heard the noise, then watched and saw the light behind the boiler; I first heard the noise.

Q. Where did you hear the noise about ? A. Coming over a gutter, the iron grating in the road, and iron bridge that covers an opening in the road; that iron bridge is seventy-five feet from where I was when I first heard it; when I heard that noise I did nothing, I looked and saw a. light behind the boiler.”

Plaintiff further testified that he did not see the headlight until it was about fifty feet off and that it was dim. He said “when the train was going over that seventy-five feet I did nothing except to sit on the wagon and shout twice to-the engineer to hold up.” Plaintiff thought that the train was going about five miles an hour; though how upon so dark a night, and, as he describes the events, he could form any possible or reliable opinion as to the speed of the train, it is difficult to comprehend. The horse and engine collided; the horse was killed and plaintiff was thrown out and received his injuries. The force of the collision was such as to cause the shaft of the wagon to penetrate the engine’s water tank.

Plaintiff further upon his counsel’s examination, testified after saying that no whistle was blown nor bell rung on the train:

“Q. When did you listen for it? A. The whole way to the city fine; I was listening, because I was expecting to meet it somewhere about theré, that part.”

He also says, when he heard the other wagon coming he told McNally he “had better turn out;” but he does not appear to have made any objection to his turning upon the track on which he tells us “he was expecting to meet trains.” He “was acquainted with that avenue; had been in the habit "of going along Third avenue a good many years.” He “used to drive a car and knew which track the cars run on in coming to Brooklyn, and was expecting a train along there.”

Plaintiff’s narrative of what happened, and from which we have extracted the foregoing facts, was corroborated by McNally. From his evidence it appears that he turned out for the wagon, because from the sound he judged it to be loaded; that they proceeded on the other road between 100 and 150 feet before his attention was attracted to any engine; that he had gone so far on the left-hand track because his wheels had got jammed. McNally had been driving over the avenue several times a month for fifteen years.

He says, “I knew the train was coming, but I did not expect her at that portion; I did not expect to meet the train there,” and he saw the dummy before he saw any light. They were on a down grade and turned out for the approaching wagon, because it was usual at that portion of the route to give the right of way to incoming wagons. His excuse for not pulling out upon the side of the road was that it was a sandy road, and the boughs of the trees would interfere with his load. That load consisted of empty fish boxes. The tree branches, he said, arched over the road, but hung lower on the sides.

With this proof we fail to see that there was any case made out for plaintiff. Reference to defendant’s proof only makes it clearer that there was no case made out for submission to the jury. The plaintiff and McNally were driving on the tracks late upon what they say was a dark night; at a place in the avenue where they knew a train was about due, with space of road on either side of the tracks to drive upon, and they deliberately turned upon the track on which they expected a train to approach. _ They were both well acquainted with the locality, and with the direction taken by trains. The fact that the side of the avenue was sandy or heavy does not furnish a reasonable excuse, for it was a down grade and their wagon no longer had its load. The low hanging boughs even if, as they say, likely to interfere with driving, were preferable as a risk to that of meeting the expected train. After they had gone on the other track they heard and saw the approaching train, but were evidently dilatory in endeavoring to avoid the impending danger. The conduct of plaintiff and Mc-Nally seems strange in view of all the facts, and difficult to account for if they had entire possession of their reasoning faculties.

It is not necessary to hold that the defendant had an exclusive right to the use of the street. It had the paramount right to the use of the street for its corporate purposes. Its tracks were lawfully there, and to its trains belonged the right of way. It was incumbent upon persons who chose to drive upon the tracks in preference to using the side of the road to be cautious and to exercise ordinary care and prudence. In such respect plaintiff and his companion were lacking, and the want of prudence is especially noticeable in view of the facts and of the knowledge they testified to possessing.

We do not think the dimness of the head-light, or the failure to blow a whistle, or to ring a bell, under the circumstances, constitute negligence on the part of the defendant. The head-light was, as a fact, lit and was seen by plaintiff. We have no proof of any legal requirement under which the bell should be rung or the whistle blown continuously upon night trips of defendant’s engines, and there was no crossing of streets at that part of the avenue to make such an indication of the approach of the engine necessary. Plaintiff in going upon the railroad track when knowing of the approach of a train, and having notice, in addition, of its coming a sufficient time to avoid any injury from it, could not, as a matter of law, recover, although the railroad company may have been, also, negligent or have neglected some requirement. "Where negligence is the issue it must be an unmixed case (27 Barb. Rep., 227). A verdict in favor of the plaintiff would have been set aside as against the evidence and in such a case it is the duty of the court to non-suit. Gonzales v. N. Y. and H. R. R. Co., 38 N. Y., 440; Neuendorff v. Insurance Company, 69 id., 393.

We think the plaintiff was chargeable with the neglect of his comrade. He was conscious of the danger and apparently made no objection or effort to avoid it. He was engaged in a common employment with McNally. He had full control of his own actions, and, though on the safe track, did not object, when, after telling McNally to turn out, they turned upon the dangerous track.

No decision cited conflicts with our view. The present case differs from that where a person accepts a gratuitous ride, as in the cases of Robinson v. N. Y. C. and H. R. R. R. Co. (66 N. Y., 11), Dyer v. Erie Railway Company (71 N. Y., 228), Masterson v. N. Y. C. and H. R. R. R. Co (84 N. Y., 247).

After a careful consideration of this case, we think, in view of the knowledge possessed by plaintiff and of his conduct at the time, that there was contributory negligence and he was not entitled to recover.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Rüger, Oh. J., Earl and Pinch, JJ., concur; Andrews, Danforth and Peckham, JJ. dissent.  