
    Nicholas Sauerborn, Ad'mr, Resp't, v. The New York Central & Hudson River Railroad Co, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Negligence—Contributory.
    It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury.
    2. Same—Railroad crossing.
    While plaintiff’s intestate was riding with one Hiss Brown, and as they were crossing defendant’s tracks, their wagon was struck by a train and demolished and intestate killed. There was evidence tending to show that they both looked for trains, stopping twice and listening, and that there were trains on track's three and four which obstructed their view. Held, not a case which could be taken from the jury on the ground of contributory negligence.
    3. Same—Failure to give signals
    A railroad company sued for death alleggd to be caused by its negligence is not entitled to have the jury instructed as a legal proposition that the failure of defendant to ring the bell or blow the whistle when approaching a crossing would not constitute a wrong or negligence on its part; whether it would or not is a question of fact for the jury.
    Appeal from judgment in favor of plaintiff for $4,178.71, damages and costs, entered upon verdict, and from order denying motion for a new trial on the minutes.
    Action to recover the damages sustained by the next of kin of Kate M. Sauerborn from her death, alleged to have been caused by defendant’s negligence.
    The deceased was riding with her cousin, Kate Brown, and as they approached the. crossing over defendant’s tracks Miss Brown stopped the horse twice and both looked and listened for approaching trains. There were freight trains on tracks three and four, which obstructed their view. They then drove on, when a passenger train on track two struck the wagon, demolishing it and throwing Miss Brown between the tracks, while intestate was thrown on track three, where she was run over and killed by the freight train on that track.
    
      S. W. Jackson, for app'lts; Daniel Naylon, Jr. (Alonzo P. Strong, of counsel), for resp't.
   Putnam, J.

The legal questions involved in this case have "been so often considered that we deem an extended discussion unnecessary.

The appellant contends that the judgment cannot be sustained because plaintiff failed to show the absence of contributory negligence on the part of the deceased, and also because of certain exceptions to the chal’ge of the trial judge and his refusal to charge.

It is well settled that it is only in exceptional cases that a non-suit can be granted on account of the contributory negligence of the party injured. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence,that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury. Massoth v. D. & H. C. Co., 64 N.Y., 529.

We have carefully examined and considered the testimony in the case and are of opinion that this was not one of those exceptional instances where the trial judge could properly have withdrawn the question as to the contributory negligence of deceased from the jury.

There was evidence tending to show that Miss Brown and deceased when approaching the track where the accident occurred exercised unusual care, stopping twice, listening and looking up to the time the wagon wheels reached the track; also, there were freight trains on tracks three and four, one going east and the other west, which obstructed the view easterly. This testimony in connection with other evidence in the case rendered it probable that deceased was not guilty of negligence in failing to observe the passenger train on track No. 2, which caused her death.

The question was not whether the deceased could have seen said passenger train, but whether under the circumstances she was negligent in not seeing it ? Greany v. L. I. R. R. Co., 101 N. Y., 424-25.

After they reached the railroad tracks it cannot be deemed us matter of law negligence on the part of Miss Brown to attend to her horse while driving over them. Moore v. N. Y. C. & H. R. R. R. Co., 49 St. Rep., 516-20. Besides the evidence indicated that while they were so crossing deceased was looking for approaching trains.

It is claimed that the court erred in charging the jury that deceased was not responsible for the same degree of care as was Miss Brown, because she was a guest. The charge in this regard we think correct. The judge said: “Here was a four-track road,

and it behooved them to take extraordinary pains to prevent being on the track at the time when a train was going along, and thus prevent a collision. Miss Sauerborn had the duty imposed upon her to aid her companion in all ways a person riding in a vehicle should do, by looking and by suggestion, and by assistance to prevent any injury to either of them by a collision with a train.” The instructions given as a whole were unobjectionable. See McCaffrey v. D. & H. C. Co., 41 St Rep., 223.

The charge in regard to defendant’s failing to ring the bell or blow a whistle was not erroneous. The jury were instructed that as a matter of law it was not negligence to omit these signals. It was submitted to the jury as a question of fact whether, under all the circumstances of the case, such signals should have been given by the defendant.

The defendant was not, we think, entitled to have the jury instructed, as a legal proposition, that the failure of the defendant to ring the bell or blow a whistle when approaching the crossing where deceased was killed would not constitute a wrong or negligence of the defendant. Whether it would or not was a question of fact for the jury.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  