
    Catherine Griffin, as Administratrix, etc., of James P. Griffin, Deceased, Appellant, v. Oscar G. Bell, Respondent.
    Third Department,
    May 8, 1907.
    Negligence — injury tó flagman at grade crossing by horse — facts ^ raising questions for jury.
    Action to recover damages for the death of the plaintiff’s intestate caused by the negligence of the defendant. The decedent was a flagman of a railroad, and while-engaged at a grade crossing in waving a flag, to give warning of a train, was run over by a horse driven by the defendant. The horse was strong and nervous, shied at the approaching engine, and, after knocking over the decedent, crossed the tracks just in time to save the wagon from being struck. On the whole evidened,
    
      Held, that the question of negligence and contributory negligence should have been left to the jury.
    Appeal by the plaintiff,. Catherine Griffin, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of -Chenango on the 26th day of September, 1905,. upon tiie dismissal of the complaint by direction of the court after a trial at the Chenango Trial Term, and also from an order entered in said cleric’s office on the 12th day of October, 1903, denying the plaintiffs motion, for a new trial made upon the minutes.
    The action is to recover damages for death of plaintiffs intestate, claimed to have been caused by the negligence of defendant.
    The Delaware, Lackawanna and Western railroad passes through the village of Norwich and across Rexford street in said village in a northerly and southerly direction. Plaintiff’s intestate was a flagman at said street. IT pon the 1st day of August, 1901$ he was struck by the. defendant’s horse, which was being driven by the defendant across the said crossing, and was injured and thereafter died from the said injuries. At the trial the plaintiff was nonsuited Froth ¿he judgment entered upon this order of nonsuit and from • the order denying the plaintiff’s motion for a new trial this appeal . has been taken. " ’ .
    
      Hubert O. Stratton and Willicmn H. Sullivcm, for the appellant.
    
      Harvey jD. Hinman' and Wordsworth B. Matter son, for the respondent.
   Smith, P. J.:

In our judgment this case presents a question of fact for the-jury rather than a question of law for the court. The engine had been detached from the train and had just passed the crossing going to the north. The flagman was there at his station waving his flag. A short distance north of the crossing the engine went over by a switch upon the other track and came then southerly recrossing the street.’ A team was upon the west of. the, crossing as the engine’ passed over to ’the , north. The deceased beckoned the driver of this team to pass over and stepped .a little.to the north that he might pass. Thereafter he stepped-back to the center of the road and was at his" post.of duty when he was struck by the defendant’s horse and injured. Tiie defendant was approaching the crossing from the east and stopped some 150 or 200 feet from the crossing. He had a strong, nervous horse; He claims that he did not see the flagman in his position giving him warning of the approach, of the engine and proceeded to cross. Just before reaching the crossing, the engine appearing upon the north side of the street, his horse ■ shied, made a lunge, knocked over the plaintiff’s' intestate and got across the track just in time to save the wagon from being struck. There is some evidence to the effect that, the deceased did not look easterly after going back into the road, but that he looked simply to the tvest. The evidence shows, however, that he stood in the middle of the road, the place in which he should have stood, waving his flag as the defendant approached him. Defendant’s counsel in his brief insists that there was no evidence that the flag was being waved at that time. Such evidence appears distinctly in the evi- ' dence of Patrick Rolan, and it is assumed by the court in the decision of this motion that the deceased was at his post waving his flag when he was struck by the horse. Whether the defendant was negligent in not heeding the warning of the flagman when he was approaching the crossing would seem to us a fair' question of fact for the decision of a jury, and whether the deceased exercised reasonable care in failing tó take greater heed of a team coming from the east while he was swinging his flag and giving warning of an approaching engine, appears to us also to have been a question for the jury to determine. We are of opinion, therefore, that the trial x judge improperly determined this question as a matter of law and should have left it to the jury to determine as a matter.of fact.

Tire judgment and order should, therefore, be reversed and a new trial.granted, with costs 'to- appellant to abide event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. - ■  