
    George E. Nash, App’lt, v. The New York Central and Hudson River Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1888.)
    
    1. Negligence—Contributory—When question for jury—Railroad crossing.
    In an action for damages for injuries, caused by the defendant’s alleged negligence in running their trains, Held, that where the case involves the conduct of an individual under such facts and circumstances as that honest men might differ as to the inference to be drawn whether the conduct was negligent or not, then the question of contributory negligence is a matter proper to be submitted to the determination of the jury. Dykman, J., dissenting.
    2 Same—What precaution must be taken when approaching a railroad CROSSING.
    There is no inflexible rule requiring a person, when approaching a railroad crossing, to turn his head both ways to see an approaching-train, but every person is bound to take reasonable precaution to avoid injury.
    Appeal from a judgment entered upon the dismissal of the complaint, at the close of the plaintiff’s case, on the ground. of contributory negligence on the part of the plaintiff at the trial thereof, at the Rockland county circuit, before a jury.
    
      Seaman & Conger, for app’lt; Ashbel Green, for resp’t.
   Pratt, J.

This is an appeal from, a judgment upon dismissal of the complaint, at the close of plaintiff’s case, on the ground of contributory negligence on the part of the plaintiff.

The plaintiff was bound to show, affirmatively, that he was free from .any negligence which contributed to the accident. But this naked legal proposition, when applied to facts upon the trial of a case, is hable to misapprehension. Where the case involves the conduct of an individual under such facts and circumstances as that honest men might differ as to the inference to be drawn, whether the conduct was negligent or not, then it is a matter proper to be submitted to the determination of the jury.

We think' it was a proper question for the jury, in this case, whether the plaintiff was guilty of contributory negligence, and that there was affirmative evidence that plaintiff exercised such care as an ordinary prudent man would have exercised under the circumstances.

At a distance of 199 feet from the track one looking through a vista in the trees may see the track a distance of 500 feet in the direction from which the train was coming. The plaintiff does not remember that he looked through this opening, and neither does it appear exactly where the train was at this time, but it does appear that no signals were given to warn persons of its approach.

At a gate in the fence which it was necessary for the plaintiff to pass through seventy-nine feet from the crossing, he “stopped his team and listened and heard nothing.” At this point the track in both directions cannot be seen by reason of obstructions. He testifies further that he drove on further down a steep decline to the track and heard no warning ’till the horses struck the track and the train was upon him. He says he was startled and tried to urge his horses onward across the track, but the whistle blew and his horses seemed paralyzed and refused to go forward and he then tried to twist them off to one side, but failed and was struck.

The plaintiff did take the precaution to stop his team at a distance of seventy-nine feet from the crossing and listen for an approaching train, and it was for the jury to say whether, under all the circumstances, it was incumbent upon him to do more, and it was also a question for the jury, assuming that he failed to stop and look through the opening in the trees at a distance of 199 feet, whether such failure showed want of due care upon his part.

That he was driving a young and spirited team, the defendant failed to give any signals, and the track was so constructed that the sound of its approach was muffled, were all circumstances bearing upon his conduct proper for the consideration of the jury.

There is no cast iron rule requiring a person to turn his head both ways to see an approaching train, but every person is bound to take every reasonable precaution to avoid injury. If the train cannot by any possibility be seen, it is nonsense to say a party must look, but we may say that some other necessary precautions to avoid danger must be adopted.

A jury might well say that stopping at the gate and_ listening without hearing any train justified the plaintiff in driving towards the track.

Considering the nature of the ground at that place, the obstructions to vision up and down the track, the speed at which the plaintiff and the train were going, a question is presented for a jury whether it was possible for the plaintiff to have seen the train in season to have avoided the collision.

There is no question of law in this case requiring discussion. The non-suit was granted upon the ground that it clearly appeared- the plaintiff was guilty of contributory negligence, and this we think was error.

Judgment reversed, new trial granted, costs to abide event.

Barnard, P. J., concurs.

Dykman, J.

(dissenting).—This is an action for damages resulting to the plaintiff for personal injuries to himself and the destruction of his horses and wagon.

The plaintiff resided on the east side of the West Shore Eailroad, which is operated by the defendant, and there is a private lane leading from his house across the railroad to the public highway. The railroad at that point runs nearly north and south.

On the day of the accident, the plaintiff started from his house with two horses before a large wagon. He was driving the horses himself, and his wife was on the same seat with him at his left, and his son preceded them to open the gate at the railroad crossing. After he drove through the gate and his horses had reached the spaces between the two tracks of the railroad, with their hind feet between the rails of the east track, a train bound north, and running on the east track struck the team and killed both the horses, broke the wagon, killed the wife of the plaintiff, and inflicted very severe injuries upon him.

The cause was tried at the circuit, and at the close of the testimony on the part of the plaintiff, the complaint was dismissed for want of proof to show the plaintiff free from contributory negligence.

The plaintiff excepted to the decision, and has appealed from the judgment.

Our conclusion, after a full and careful examination of the testimony, is that the plaintiff failed to prove the absence of contributory negligence, and that the judgment should be affirmed with costs.  