
    Isabella C. Hoag, App’lt, v. The New York Central Railroad Co., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Negligence—Husband and wife—Negligence of husband not imputable to wife.
    Oh the trial of aa action for damages, under the statute, for the death of a certain person caused by the defendant, it appeared that the deceased and her husband were driving and had crossed at a certain road crossing the freight tracks of defendant, which were seventy feet from the passenger tracks, and in an endeavor to cross the passenger track were struck by the train of defendant and both killed. If it be assumed that the husband was negligent, held, that his negligence could not be imputed to the wife.
    2. Same—Duty of one driving with another on approaching railroad crossing—When question of fact.
    The facts show that the wife if she had looked could have seen, and would have seen, the approaching train. Held, that she had no right, because her husband was driving, to omit some reasonable and prudent effort to see for herself that the crossing was safe. She was not bound to suspect that her husband purposed to attempt to cross the track in front of the approaching train until she saw it being executed ; that she was not hound to jump from the wagon ; that if deceased was silent, it does not follow, as a matter of law, that she was negligent; that, under the circumstances, it was a question for the jury whether the deceased was negligent or not.
    3. Same—Degree of care necessary.
    The degree of care to be exercised varies with circumstances and emergencies.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment dismissing the complaint entered upon an order granted at the trial of an action at the circuit court.
    
      G. L. Stedman, for app’lt; Hamilton Harris, for resp’t.
    
      
       Reversing 36 Hun, 646, mem.
      
    
   Finch, J.

The husband and wife were both killed by collision with a passenger train while attempting to cross the defendant’s track at a crossing known as Fuller’s Lane. The husband was driving and his wife, for whose death this action was brought, was riding with him on the way to their home. At this crossing the passenger and freight tracks were seventy feet apart. To the deceased and her husband, who were approaching from the north, the freight tracks were the first to be crossed. At that crossing and all the way to the passenger tracks a train upon them was visible, without anything to obstruct or hinder for a distance of at least one, and possibly of two miles. The husband when approaching the freight tracks stopped his horse when a hundred or more yards away, and then again within fifteen yards of the crossing, because of the passage of a freight train which obstructed the way. When that had passed they crossed the freight tracks in its rear and in an endeavor to cross the passenger tracks were struck by a train and killed. Nothing is known of the manner of the accident except that the horse was seen jumping to get across and did in fact escape. On this state of facts the plaintiff was nonsuited and that judgment affirmed by the general term.

If we assume for the purposes of the argument the negligence of the husband who was driving, yet his negligence cannot be imputed to the wife. Platz v. Cohoes, 26 Hun, 391, affirmed 89 N. Y., 219; Robinson v. N. Y. C. R. R., 66 N. Y., 11.

The question presented as to her is whether there was any evidence tending to show that she was free from negligence contributing to the injury. • The facts and circumstances proven admit of two conflicting inferences, one or the other of which must be true. The deceased and her husband either saw the passenger train approaching as they neared the track, or they did not. If they did not see it or at least the deceased did not see it she was negligent for she was bound to look and listen and the facts show that if she had looked, she could have seen and would have seen the approaching train. She had no right because her husband was driving to omit some reasonable and prudent effort to see for herself that the crossing was safe. But the strong probability is that she did see the train and her husband did also, and that he-for some reason undertook to cross in its. front, miscalculating perhaps its distance and speed and his opportunity. She was not bound to suspect that purpose until she saw it being executed. Before that she might reasonably expect him to stop and wait. When she saw that he was about to make the attempt they must have been very close to the track. She was not bound to jump from the wagon. That might seem to her as dangerous as to sit still. She could not be required to seize the reins or interfere with the driver. That is almost always dangerous and imprudent. She might have begged her husband to stop, and we do not know that she did not, but if she did not and sat silent it does not follow as matter of law that she was-negligent. Her husband seems to have been ordinarily a careful man. Having his wife with him, one would think, would make him more so. He stopped twice before he crossed the freight tracks.

She was hardly blamable, when both saw the coming train, for thinking and expecting that he would stop again. When she saw that instead of that he meant to cross, she should have spoken, perhaps, hut she may have been so near the engine, as to have scarcely had time, or so paralyzed with fright at the impending danger as to have lost her judgment and prudence for the moment. The degree of care to be exercised, varies with circumstances and emergencies. If the deceased was silent, it does not follow, as matter of law, that she was negligent. Which of the two inferences we have named should be drawn, and if the latter, whether the surrounding circumstances sufficiently show that the deceased was not in fault, were questions which we think should have gone to the jury.

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

All concur, except Earl and Gray, JJ., not voting; Peckham, J., not sitting.  