
    Amasa Q. Milliman, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department
    November, 1905,
    Negligence — injury received at railroad crossing — trial justice elevated to Appellate Division cannot decide reserved motion for nonsuit.
    The plaintiff was injured by falling from a wagon which was being driven across • a railroad track while an engine was approaching which the occupants of the .wagon knew to be engaged in switching cars.
    
      Held, that a railroad company has the right of way at a-crossing and when one sees cars approaching it is his duty to wait until they have passed.
    Under such circumstances, the failure of the' engineer to give any signal is immaterial, since the- occupants "of the. wagon were watching the engine, and further notice would.have been useless. A nonsuit should have been granted. A trial justice elevated to the Appellate .Division has thereafter no jurisdiction to hear and decide a motion for a nonsuit which he reserved at trial.
    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 Wayne on the 11th day of April, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the lltli day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes, with notice, of an intention to bring up -for review upon such appeal an order entered on the same day denying the defendant’s motion for a nonsuit.
    
      Daniel M. Beach, for the appellant.
    
      A. Lee Olmsted,-for the respondent.
   Nash, J.:.

The plaintiff,-with four other men, was in a lumber wagon driving south on the highway toward the railroad crossing near the defendant’s station at Eed Creek, Wayne county, on the Eome, Watertown and Ogdensburg railroad.

The driver, Milton Jenkins, owner of the team and wagon, sat on the front seat, and with him one Becker; on the next seat, a board across the top of the wagon box, were xthe plaintiff, sitting to the left, and Burgess Jenkins, the father of Milton, on his right or west side; the fifth man, Qurea-u, was on a seat in the rear.

As they approached the railroad crossing they were stopped by an east-bound freight train, which had pulled into the station, and' it being a down grade to the east the train did not come to a stop until the engine was some distance east of the highway crossing. The train was hacked up and placed 200 or 300 feet west of the highway, where some of the cars were uncoupled and were «hifted back and forth across the highway on the main track and a siding on the south, the nearest rails of the two tracks being 9 feet apart, and were connected by a crossover which started from the siding or south track at a point east of 'the highway, and crossing the highway, and was connected with the main track- 95 feet west of the center of the highway.

The party in-the wagon stopped first - On a knoll some 200 feet to the north of the track, and remained there about ten minutes while the engine was switching cars back and forth over the highway. The wagon, was then moved down into a hollow 100 feet or more from the track, from which point there is a rise to the track. There they waited until. the wagon was moved back toward the train. The driver then started the horses on a walk to cross the track, and while they were walking the engine ran down over the crossover- far enough beyond the switch to reverse and come -hack on the main -track. When the party saw the engine coming back, the driver was about forty feet and the horses’ heads about twenty-eight feet from the track. He then whipped the horses into a .run, and crossed in front of the engine, which missed the rear end of the wagon by.from four to six feet.

Burgess Jenkins says, “the engine backed west, and as it crossed the crossing my son started the team, and when the engine had got to, the branch west of the crossing, or the switch, it reversed, stopped and reversed, and we were under headway to cross, -and I began to measure the distance between the engine and the crossing and our team and the crossing, and began to be alarmed in regard to our ability to cross. The Court: What was the distance at that time ? A. I should think about forty feet or such a matter. Q. From where you were in the wagon to the crossing ? A. At the time the engine reversed, yes. Q. How far was the engine ? A. I should think it was about — of course I didn’t measure it — but I should think it Was about two rod above the branch, west of the switch. That is about my best judgment. The rapidity of the exhaust alarmed me more and I saw my son was urging the team forward, and I rose up in the wagon. I kept my eye on the engine and rose üp in the wagon, and just about when we were on thefracks I jumped, feared we was going to be struck by the engine. To the best of my recollection Milliman was sitting to the left of me; I rose, stood up in the wagon box, stepped in front of Milliman and over the box onto- the step or running board outside of the box, and jumped. I. think my left foot struck the rail; that is between the plank crossing and the sidewalk. I next saw Milliman on the ground.” ■

. The plaintiff says: “We stood down there at the foot of the. gradé I should think ten minutes. When we started up from down at the foot of the grade the engine was coming back toward the main track over the crossover; * * * as you came along up that grade * * * ■ the engine.ran back onto the main track and there Was a man there, * * * after she ran back of the switch a little, he Whirled the switch, swung up his hand so, and he pulled it wide open and let her come right down. * * * I could see the switchman and. the engine perfectly plain at that time; nothing between, and nothing to' prevent their seeing me: At the time that the engine was opened up, the horses were still on a trot. * * * Q; How long was it after you heard the engine opened up,' before Milton Jenkins put the whip on the team.* A. He put it right on. * * * He commenced whipping the horses and getting off the track, and Burgess Jenkins raised up in the wagon and he swung hiá hands so, * * * towards the engine. It kept coming near to us and he raised up and I partially raised, the wagon ran over the end of the plank, one wheel, the hind part of the wagon ran over the end of the plank and bob along that way and he went out and I partially raised as he went out and he took me out with him. Of course I went onto the ground, the team passed us; I undertook to get up. I couldn’t get up. I struck on my head and shoulders; *. '* * the wheel o_f the wagon throwed me, the hind wheel on. the nigh side of the wagon pitched me forward on the ground onto. my head and shoulders.”

The engineer says he saw the team back on the knoll, but did not observe, it afterward until the horses’ heads were near the track and his engine about half way between the switch and crossing, when he shut off steam and applied the brake.,

The negligence alleged is .that no signal was given at the time the engine was reversed and came back toward the crossing.

The court charged the jury that when the engineer backed the engine west of the crossing, stopped, reversed and started in an easterly direction, he was bound to give reasonable and timely warning or notice that he proposed to run his locomotive over, the crossing. We are of the opinion thát it is not a question of signals:

The defendant had the right, as stated in the charge, to shift cars at stations ;• had a perfect right to block the highway in the manner described by the witnesses, iñ other words, the defendant had the right of way. As stated by the court in Warner v. N. Y. C. R. R. Co. (44 N. Y. 469), the citizen must yield the right of way at highway crossings, and if one sees cars approaching a crossing it is his duty to wait until they have passed. Signals would not have given the-occupants of the wagon any more, notice of the approach of the engine than theyliad at the time the.men in the. wagon were forty and the horses twenty-eight feet from the crossing. Qureau says: “ I could see the engine all the time as we were going up the incline.” Becker says he heard the lever when the engine was reversed; then he looked and saw that the engine was coming.

The language of the court in Pakalinsky v. N. Y. C. & H. R. R. R. Co. (82 N. Y. 427) is applicable to the case here : “ The sole object of ringing a bell upon an engine is to notify persons who might be upon or near a railroad crossing of the approach of the engine, so that they can get or keep out of its way. If one setes the engine and knows that it is approaching, he needs not the warning of the hell, and as to him it is useless to ring it. Here the plaintiff saw the engine, at first standing still, then starting and going westerly, and then backing easterly toward him, and while he was endeavoring to run across the tracks, one of his feet became fastened between a rail and planking, and lie fell down and was run over. He thus had all the notice the ringing of the bell could have given him, and the omission to ring it had nothing whatever to do with the accident.”

Hpon the facts shown by the plaintiff the defendant was entitled to a nonsuit. '

Without regard to the disposition made of the question which we have discussed, the judgment must be revérsed.

The trial justice having become a member of" the Appellate Division of the second department, had no power or jurisdiction thereafter to hear and decide the motion for a nonsuit reserved at the trial at. which the case was heard and decided. (French v. Merrill, 27 App. Div. 612.) .

All concurred, Spbihg, Williams and Hiscock, JJ., upon the ground of mistrial only.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide _ event, upon questions of law only, the facts having been examined and no error found therein.  