
    Nettie L. McKinney, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — duty of a railroad company to maintain a safe crossing.
    
    Where the tracks of a railroad company at or near a small hamlet are carried in a northerly and southerly direction across an unimportant highway fifty feet in width, and the railroad company makes a roadway over the tracks by placing, in close .proximity to the north line of the highway, planks eleven or twelve feet long on either side of each rail and filling in the spaces between the planks with cinders and gravel, which filling extends to the surface and to within about a foot of each end of the planks, thus making a level roadway from nine to ten feet in width, the duty imposed upon the railroad company by section 11 of the Railroad Law (Laws of 1890, chap. 565), of placing the crossing in such a safe condition that a traveler exercising ordinary care may pass over the same in safety, is sufficiently performed, and the railroad company is not liable for personal injuries sustained by a woman familiar with the crossing while driving over it in a cutter, in consequence of the fact that a freight train standing near the crossing started up with such noise that the horse became frightened and shied toward the north tipping the cutter over and throwing the woman out.
    . Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 28th day of January, 1901, upon the verdict of a jury for $2,800, and also from an order entered in said clerk’s office on the 11th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff brings this action to recover damages for personal injuries sustained by her while, traveling upon the public highway and over the tracks of the defendant at or near the village of Rich-land, in the county of Oswego, on the 9th day of February, 1900.
    The defendant’s road runs nearly north and south at the village of Richland, connecting with a branch running in a westerly direction to the village of Pulaski.
    The plaintiff, who is a married woman, resides at Orwell, about two miles east of Richland. On the day of the accident she drove with a horse and cutter to Pulaski, which is about four miles west of Richland, to get her daughter who was attending school at the former place. The day was clear and cold, and there was enough snow upon the ground to make fairly good sleighing. Mrs. McKinney left Pulaski with her daughter at about five o’clock in the afternoon and reached Richland soon after six. She drove along the main road,’which is known as the Pulaski road, until she reached the defendant’s tracks, which she found obstructed by a freight train tó which an engine was attached at the south end. After, waiting some five minutes for the train ■ to move on, she turned about and drove back a few rods to a road running north and south, and thence to another crossing which was about 300 feet north of the Pulaski road. Upon reaching this crossing she discovered that-the-caboose of the-freight train was standing close to the south line of the high-, way, and again she waited about five minutes for the train to move on, but becoming tired of waiting she finally started to drive over the tracks. Her horse was agentle dne and more or less accustomed to the cars, but as she drove upon the tracks the freight train started up with such a noise that the horse became frightened, shied towards the north, the cutter tipped "over, and both Mrs. McKinney and her daughter were thrown out, the former receiving the injuries com- . plained of and which, as the evidence tended to show,, quite seriously impaired her eyesight and hearing.
    At the close of the plaintifE’s evidence the. defendant moved for a nonsuit, -which was denied, and. at the conclusion of the entire case the motion was renewed with the same result. To the ruling of the trial court in this respect exceptions were duly taken, as was also-.the case with regard to the submission to the jury of the question- of the defendant’s negligence. The jury rendered a verdict in the plaintifE’s favor for $2,800, and from the judgment entered .thereon,. as well as from the order denying the defendant’s motion for a new . trial upon the minutes of the court, this appeal is brought.
    
      Henry Purcell, for the appellant.
    
      N. B. Smith, for the respondent.
   Adams, P. J.:

The only ground upon which the plaintifE’s recovery can be permitted to stand,' if at- all,' is that the defendant was negligent in the performance of the duty which the law imposes upon it as well as upon all- the railroads similarly constructed, of making its highway crossings reasonably safe so that travelers thereon will not be subjected to any unnecessary inconvenience or hazard.

This duty is one which is founded not only upon common-law principles, but it is likewise one which is expressly imposed by statute (Laws of 1890, chap. 565, § 11) and it is a continuing duty. In other words, every railroad company which carries its tracks over or along a public highway is required to restore and maintain the highway and the approaches to the crossing in such a safe condition that a traveler exercising ordinary care may pass over the same in safety. (Gale v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 594; Allen v. B., R. & P. Ry. Co., 151 id. 434.)

Obviously, therefore, in the case before us it.becomes important to examine the facts, concerning which there is fortunately but little controversy, in order to determine how far they sustain the plaintiff’s contention that the defendant has neglected its duty in respect of this particular crossing.

The highway, which is known as “ Crossing No. 367,” is fifty feet in width, and there are three tracks and a branch of the defendant’s road which intersect and cross it nearly at right angles, the distance between the outer east rail and the outer west rail being thirty-three feet and two inches. Between these rails and in very close proximity to the north line of the highway are placed fifteen planks. These planks are from eleven to twelve feet in length, eight inches in width and from four to four and a half inches in thickness. One is spiked down on either side of each'rail, and the inteiwals between the planks are filled with cinders and gravel, which reach nearly to the surface of the planks. This filling extends to within a foot of each end of the planks, so thatstlie level roadway is from nine to ten feet in width. At the north end the drop from the planks to the surface of the ground is nearly six inches, and there are also some depressions which have been caused by the operation of the elements which add somewhat to the unevenness of the surface of the road. There is no claim but that these planks were in good condition at the time of the.accident, nor is it pretended that the approaches to the crossing were in any sense dangerous or inadequate. Indeed, it seems to be conceded that the highway upon either side of the crossing was practically level and that there was sufficient room for teams to pass or turn around. The case, therefore, resolves itself into this single proposition: Did the provision which the defendant made for the crossing of its tracks satisfy the-requirements of the statute %

It is to be observed that a railroad company in carrying its tracks across a public highway is not required to- literally restore the highway to its former condition, for that would be an impossibility. No railroad can cross a highway at a grade' without impairing its--usefulness to some extent and augmenting the dangers and annoyances to be encountered by the traveling public. What is required, of it, however, is that it shall make such restoration of the highway as will not unnecessarily impair its usefulness and shall take such reasonable precautions as are proper to make the crossing safe with reference to its new surroundings and circumstances (Allen v. B., R. & P. Ry. Co., supra) ; and this, we think, it may be said; as matter of law, was precisely what the defendant has done.

The highway in question was not a main thoroughfare, although some of the plaintiff’s witnesses testified that they had seen as many as fifty or seventy-five teams pass over it in a day ; but the Pulaski road was the one ordinarily traveled by people' who had occasion to drive from Pulaski to Orwell, and this highway, known as “ Crossing No. 367,” which was less than 400 feet in length, was supplementary or auxiliary to the principal crossing. Richland was not an incorporated village. On the contrary, it was but a mere hamlet,, with a population of about 250 souls. The crossing had existed in the condition in which it was on the day of the accident for a considerable period of time ; the plaintiff was entirely familiar with it, having frequently driven over it without difficulty, and with a single exception it does not appear that an accident had ever .before occurred which was in any wise attributable to the insufficiency or insecurity of the crossing itself. Indeed, it may be asserted- with entire confidence that the plaintiff would have experienced no difficulty in passing over the defendant’s tracks upon the night in question, had not her horse taken fright and shied to the-north. Such a contingency as this is exceptional in its nature and one which we do not think a railroad company is required to guard against, and to allow a jury to say that a plank crossing which was of sufficient width and in all' other respects. adequate and safe for the ordinary uses to which this highway was put, should have been a foot or two wider in order to have furnished frightened horses an opportunity to shy and plunge, would impose upon railroad companies a degree of care and foresight beyond that which we believe can be reasonably required of them.

For these reasons, we think, it was error in the trial court to submit the question of the defendant’s negligence to the jury, and that such error requires a reversal of the judgment and order appealed from.

All concurred.

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