
    Kate Ward, as Administratrix, etc., of Morris Ward, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    May 3, 1907.
    Negligence — injury to passenger in automobile by collision with train — facts warranting finding of negligence of defendant — passenger not liable for contributory negligence of driver.
    The. plaintiff’s intestate, a passenger in an automobile driven by another per- ■ son, was killed by a collision of the vehicle with a train' operated by the defendant at a crossing where the view was obstructed. Evidence examined and ,jWeld, to warrant a finding that the defendant was negligent.
    
      Held further, that a passenger in an automobile having nothing to do with the management or control thereof is not chargeable with the negligence of the driver of the machine.
    Beargdment of an appeal by the defendant, The Brooklyn . Heights Bailroad Company, from; a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of 'the clerk of the county of Kings on the 16th day of December, 1905, upon the ver- ■ diet of a jury for $10,000, and also from an order entered in said clerk’s office on the 14th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. B. Oeland, for tlie appellant. •
    
      George V. Brower, for the respondent.
   Rich, J.:

When this apjioal was before us at the October, 1906, term (115 App; Div. 104) we did not have the brief of the learned counsel for the respondent before ns. A careful reconsideration, of the questions involved satisfies us that a different disposition ought to have been made of the • appeal, and that the judgment inust be affirmed. Thé action was brought to recover damages for-pefsonal injuries sustained by the death of plaintiff’s intestate, through the alleged negligence of the defendant in the operation of one of its motor trains which collided with the automobile in which the deceased waS riding, at a point where its track crosses Avenue JD in the borough of Brooklyn. The deceased was in the employ of the John S'.- Loomis Company as a general all around man. . On the day of the accident, Hr. Guy Loomis, a member of said company, had business in Flatbush, and asked the deceased to accompany him in his automobile. Plaintiff’s intestate knew nothing about an automobile or its.' management, and had nothing to do,with the operation of the machine on the day in question.- Loomis had had considerable experience in operating an automobile, and had used one frequently in traveling in the vicinity of Brooklyn on tlie business of his company. They proceeded in the automobile to Flatbush, where Loomis transacted some business, after which they passed along Ocean avenue to Avenue' D into which they turned, going west. Between East Fifteenth and East. Sixteenth streets the tracks of thé defendant’s road cross Avenue D at grade. The distance from East Sixteenth street to the railroad tracks is one hundred and sixty-one feet and one inch. The roadway of Avenue JD east of Sixteenth street was asphalt and west of it to the tracks was a dirt road, rough and, as the evidence tends to show, not in good condition. The surface of this dirt road was twelve inches lower on the day of the accident than when the conditions existed testified to by the engineers who made the surveys -and maps, as to distances at which a car on- the tracks could be seen from Avenue D between East Sixteenth street and the crossing. On the south sMe-of said avenue, twenty feet south of-the curb line, was a hedge of the average height of three feet above the curb line and four and one-half feet above the level of the surface of the roadway, commencing about thirty-five feet west of East Sixteenth street and extending to a point fifteen feet east of the-east rail'of the tracks. Back of this hedge and twenty-nine feet from the south curb of Avenué D — commencing at a point about thirty feet from the east rail of the track ■— was a board sign extending east, parallel with the avenue, sixteen feet and one inch, nine feet two inches high. Commencing at the westerly end of this hedge, at a point abont fifteen feet from the east rail of said tracks, was another hedge of the average- height of six feet (in which grew a row of trees about twenty feet apart and in which was placed a number of telephone or telegraph poles) extending south parallel with the tracks, a distance of over three hundred and sixty feet. East of this hedge and at a distance of approximately forty-five feet from, the east rail of the tracks, were four dwelling .houses fronting on East Sixteenth street, the one. nearest Avenue D being about eighty-five feet distant therefrom. It appears that from, the intersection of the west line of East Sixteenth street with the south line of Avenue D the view was cut off by this house to such an extent that it was impossible to see down the track a greater distance than one hundred and sixty feet, and while the view as they approached the crossing continued to enlarge from this point, a view of the train approaching was obstructed. Immediately on passing this house, the sign referred to for a distance of sixteen feet interfered with and limited the view beyond a point about one hundred feet south of the crossing — the traveler then being within thirty-five feet of the tracks. - From this point a view of the tracks was cut off by the hedges until the traveler was' within fifteen feet of the crossing, the view being more interfered with and cut off as a person drew nearer to the tracks by the greater density of the hedge running north and south, Loomis and the deceased approached this crossing at the rate of six miles an hour, the automobile being driven on the south side of the center of the avenue to avoid tlie broken stone with which the surface of the north side was covered. At the same time one of-defendant’s trains composed of three cars was approaching the crossing from the south, at a rate of eighteen miles an hour. Loomis says that both plaintiff’s intestate and he were watching out.” "When the automobile reached the point between the west side of the house and the east end of the sign, where to some extent a view could be had of the track south of the crossing, Loomis looked and saw no train within the range of his vision. At that time the train- was at Ditmas avenue —■ about one hundred and forty feet south of the south line of Avenue D. One Burké, who was a passenger on the train, testified that when it was at Ditmas avenue (one car having crossed it) he'saw the hats of Loomis and the deceased at a point between the house and sign.' The hedges cut off Ms view so lie could not see the automobile or any part of their'persons. He was not able to see them again, because of the hedges and other obstructions, until the automobile emerged from behind the west end of the east and west hedge, and it was then within fifteen feet of the tracks. •The mo tor man testified that he did not see the automobile until thé train was within about sixty feet of the crossing, and that at that time the automobile was thirty ^pr thirty-five feet .east óf the tracks. As soon as the automobile uncovered the hedge, Loomis looked'first to the north' and then to the south, and discovered the approaching train then, as lie says, only fifteen or twenty feet away. It being-impossible, as lie- believed, to turn the machine around.or to 'stop it in time to avoid, a collision, he - attempted to increase his speed to cross ahead' of the-train, which,-as he testifies, was.his only possible chance -to escape. • The train collided with the automobile' upon the .crossing and plaintiff’s intestate was killed. - ■' ' .

It is .evident that the mótorman’s estimate of the distance that his train and the" automobile (when he first .saw it) were from the crossing is erroneous. The train was running at the rate of twenty-seven feet, and the automobile at the rate of eight and two-thirds feet, a second.' Had the automobile been thirty feet from the crossing-when the train was sixty feet distant from it, the train would have crossed Avenue D ahead of the automobile and without collision. But five seconds'intervened between the time Loomis looked to the south, when he was between the'house and sign, and the time when the automobile ■ reached the crossing, duririg which time the train passed over, the one hundred and thirty-five feet between' Ditmas' avenue and the crossing, at which point the collision occurred. The crossing was dangerous and unprotected. Loomis was listening for any noise.or .signal and testified that none was given. He said tliat\ had a signal been given at any time before he was within fifteen feet of the track he could have stopped the automobile and avoided a collision. . Because - no signal was given lie testified that he thought “ things were all right.” Nothing was said to Loomis by the deceased indicating that he had seen or discoveréd the approach of the -train. Upon these facts ihe- jury were warranted in finding'negligence on the part of the defendant. Although the evidence as to the degree of care exercised by plaintiff’s intestate is somewhat meager, there is some evidence in the case of the exercise of care on his part which, .with the existing conditions established, was sufficient to' make his negligence a question for the jury. He was a mere passenger and had nothing to do with the management or control of the machine; and even assuming that Loomis was negligent, he was not chargeable with it.

The jury have resolved the questions submitted to them in favor of the plaintiff upon evidence sufficient to sustain their conclusions. The judgment and order must, therefore, be affirmed, with costs.

Hirsohberg, P. J., and Hooker, J., concurred; Jenks and Gaynor, JJ., dissented.

Judgment and order affirmed, with costs.  