
    Catherine Waldele, as Administratrix, etc., of Philip J. Waldele, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence —liability for a person acting as flagman — not dependent upon proof that the acting flagman was employed by the corporation — accuracy of judgment not required in a position of peril — city ordinance as to the speed of a train —?■ opinions of non-experts as to speed.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant.,' a railroad corporation, it appeared that the deceased, who was a deaf mute, in attempting, to cross the tracks of the defendant at Brown street, in the city of Rochester, was run over and killed. The defendant had at the point four tracks, of which No. 1 was the most southerly, and as the tracks were in a busy portion of the city, a flagman was employed at the crossing day and night, but at the time of the accident, the regular flagman being absent, another person, having a lantern, was acting, as flagman. There was an electric light on the south side of the tracks. As the deceased, who was familiar with the crossing, approached the. tracks from the north, a freight train was going west on track No. 8, and after the freight train had passed' the flagman swung his lantern, indicating that the tracks were clear, and then started towards the flagman’s shanty on the north side of the tracks, whereupon the deceased started to cross the track, and had reached the north rail of track No. 1 when he was struck by an express train going east and running at the rate of forty miles an hour.
    Upon the trial of the action the plaintiff was nonsuited.
    
      Held, that this was erroneous;
    That, in view of the facts that the train was running at the rate of forty miles an hour in a thickly populated part of the city, and that the regular flagman had abandoned his post, the question of the negligence of the defendant should have been submitted to the jury;
    That as the acting flagman had swung his lantern and walked away to the shanty the deceased- was authorized to regard this as an invitation to him to cross the track;
    That the defendant was not relieved from liability by the fact that it was not shown that the acting flagman was in defendant’s employ;
    That as the deceased knew of the dangers of the crossing the question of his contributory negligence should also have been submitted to the jury;
    That while the deceased might have been able to see the express train when he reached track No. 2, he would not, under the circumstances, beheld to absolute accuracy of judgment in view of the fact that, he was then in a position of great peril;
    That it could not be said as matter of law that the deceased was guilty of contributory negligence;
    
      That the plaintiff was entitled to prove a city ordinance providing that no railroad company should run its cars east of Brown street at a greater speed than eight mijes per hour, as under the circumstances such an ordinance might be deemed to cover the entire width of Brown street, which would bring the place of the accident within the scope of the ordinance, and not he limited to the easterly line of that street; ' '
    That it was erroneous to reject the evidence of persons not experts as to the speed of the' express train, inasmuch as persons of ordinary experience are capable of imparting to the jury a fair idea of the speed of a train when it passes them. .
    Appeal by the plaintiff, Catherine Waldele, as administratrix, etc., of Philip J. Waldele, deceased, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 15th day of November, 1895, denying the plaintiffs motion for a new trial made’ upon the minutes, upon a nonsuit granted at the Monroe Circuit after a trial before the. court and a jury.
    Philip J. Waldele was an educated deaf mute, forty-seven years' of age, residing on Madison street in the city of Rochester. Just at daybreak, and between six-thirty-five and six-forty a. m. of January 30j 1895, at the Brown street crossing in that city he was struck by an engine of defendant and instantly drilled. --At that, point defendant’s four main tracks cross the street "at' gradp. The track's of the Rochester and Pittsburg railroad also cross Brown stréet immediately south of and parallel with the Central tracks. The trains of the Charlotte branch, Falls branch, and the direct road of the Central and of the West Shore pass over this crossing, which is in a thickly populated portion of the city, and is much used by pedestrians and others. Four other streets center-6at. that, point. The defendant employed.one flagman at-this crossing from six at night until seven in the morning, and one from seven in the morning until six at night. This it had done for some time previous to, and they were so employed at the time of, the accident. At ten minutes to six on the morning of the accident Thatcher, one of those flagmen, was seen on duty at the crossing. There was a large electric light, twenty feet from the ground, south of the Central tracks and- at the westerly curb of Brown street, and this light was burning at the time of the accident. At that time also a number of box cars were standing on the Rochester and Pittsburg tracks just west of this crossing;
    
      Plaintiff’s intestate liad for many' years lived near this crossing and was-perfectly familiar with it. On the morning of the accident he left home about six o’clock, went over this crossing to a saloon 150 feet north of the tracks.. He remained until six-thirty-three or six-thirty-four o’clock, when he came out and went toward the tracks. At that time a freight train of forty or fifty cars on track No. 3 was approaching the crossing, moving to the west.' While this freight train was passing over tire crossing a man with a lantern was there acting as flagman. He stood at the southerly side of defendant’s tracks, and immediately after the freight passed swung his lantern, indicating that the tracks were clear, and then started towards the flagman’s shanty on the north side of the tracks. He gave no sign that another train was coming. Plaintiff’s intestate started across the tracks just after the freight train had passed, and, as he reached track No. 1, was struck by the engine of a fast express train from the west, running at the rate of forty miles an hour. Waldele was thrown into the air, and his body struck track No. 3 or 4 twenty feet east of the crossing. The wounds upon his body were on the right side ; he was thrown to the east and north, indicating that when struck he had just reached- the north rail of track No. 1. At the time of the accident the regular flagman, who had been on duty at the crossing a short time before, had gone to a saloon about 200 feet away. Just after the accident he was seen on Brown street coming from the direction of the saloon towards the crossing.
    
      John A. Barhite, for the appellant.
    
      Edward Harris, for the respondent.
   Green, J.:

The first question presented is whether the evidence of defendant’s negligence was sufficient to require the submission of that question to the jury.

It was proved and not denied that defendant’s train which struck plaintiff’s intestate was running at the rate of forty miles an hour over Brown street crossing, which is in a thickly populated portion of the city of Rochester. Defendant’s employee, whose duty it was to - protect from danger those who crossed at that point, had abandoned his-pofetj either’ leaving a substitute, or" making it possible by his neglect for an unauthorized person to assume his position' and his duties, and by his signals and negligent and careless conduct give false assurance of safety to those .who were obliged to use this dangerous 'crossing. •

■ The courts in this and other States have repeatedly declared that it is a question of fact for the jury whether the rate" of speed Of railroad trains in crowded centers of business and population, and through villages and cities more or less - densely populated, is excessive or dangerous. It is" unnecessary" to call attention to the familiar cases .upon the subject ;• they all reach a like result,, and have tirrnly established the rule which must govern courts in the disposition, of that question.

The evidence of the absence of the regular flagman at that crossing at the time .of the accident tended to show negligence on the part of the defendant, and should- have been submitted to the jury upon that question. Where a flagman has been uniformly stationed by a railroad corporation at a street crossing the negligence of the flagman in failing to give warning, and to properly discharge his duty, or in absenting himself from his-post, is .imputable to the corporation. (Dolan v. President, etc., 71 N. Y. 285; Wilbur v. R. R. Co., 65 N. Y. St. Repr. 664.)

There was evidence tending to sho w negligence on the part of the defendant, and the learned trial justice erred, in deciding as a matter" of law that the defendant-was not negligent. That question should have been submitted to the jury.

The question of the contributory negligence of plaintiff’s intestate should, also;have'been submitted to the-'jwry.

Plaintiff’s intestate, was familiar with the crossing,, and had been, for several years ; he knew its dangers; knew that defendant considered it- so dangerous that a flagman was stationed night and day upon that crossing to give warning of approaching trains, and to assure safe passage to pedestrians. Waldele had walked over this crossing, many times when" the flagman -was at his post of duty, and while he must have known and appreciated the dangers of the situation, he must - also have known and appreciated the safeguards for himself and others which the defendant had provided. Familiar as. he was with all this, crossing there- in safety as -lie had for .so many years, he must have known that this defendant, for its protection and that of the public, had stationed at this crossing a flagman whose sole duty it was to stand upon those tracks and discover approaching trains and give warning of their proximity to that crossing.

It appears that Waldele came to track 3 about the time the freight train came upon the crossing of that track. The witness Roth testified that he crossed just before the freight, and that the flagman with his lantern was then on the crossing flagging the freight train. Mrs. Wyrsing, another witness, testified that she and her husband were at the south of the tracks, and that she first saw the freight ■train when the flagman made the motion to stop. It appears conclusively that when the freight was approaching and while making the crossing this person with the lantern was there acting as flagman. Waldele was then at the track on which the freight was passing. Immediately after the freight had- passed the acting flagman swung his lantern indicating that the tracks were clear and started toward the flagman’s shanty across the tracks to the north. He gave no sign that another train was approaching. Waldele starts to cross, passes over track 3, and on to track 2, and at this point it is claimed by defendant he could have seen .the fast express coming from the west on track 1. But if the man who swung the lantern and who had an unobstructed view to the west did not see the approaching train, as he apparently did not, why should Waldele see it? If the Wyrsings, who had been stopped by the flagman for the freight to pass, and who then, relying on the signal of the flagman, started to cross, and were only precluded from so doing by the express train coming upon the crossing before they could reach the track, did not see it, why should Waldele?

It does not follow, as matter of law, that because he might have seen the coming train, he was guilty of contributory negligence. He had awaited the passage ofJ one train. An assurance of safety and invitation to cross had been given by the acting flagman, who had started for the flagman’s shanty, indicating that there was no further danger to be apprehended. While Waldele under these circumstances was bound to use his eyes, he was not bound to use them, in a particular manner or at a particular instant of time. (Oldenburg v. R. R., 124 N. Y. 419.)

The evidence shows that even'if Waldele. had; looked westward, immediately after crossing track 8, he would - have had only three seconds, if crossing directly, and less than six if crossing, diagonally, over the tracks, in which to determine his action’ in escaping the impending danger. He came thus far upon the crossing after invitation by the flagman. The electric light on the south - side of the track shone directly in his eyes. It was still dark; lie had reached track 2;. if he then first saw the headlight of . the passenger train coming toward him at the rate of forty miles an hour, who shall say that under the conditions existing at that second of time he may not have judged that the express train was on track 2, and that in passing to track 1 he was passing to safety and not to death ? ;

The law does not hold a person to the same degree of prudence in times of danger as when deliberation is possible.. .When' a defends ant, by its negligent act, causes the circumstances .of peril and creates the emergency, it is not released from responsibility because the plaintiff did not exercise the soundest discretion in his efforts to obviate the consequences of its fault. •

When danger is imminent the law does not demand that accuracy of judgment required under other circumstances. (Roll v. Railroad, 15 Hun, 496; affd., 80 N. Y. 647.)

Waldele had a right to rely upon the presence of a ■ flagman to warn him of danger, and the swinging of the lantern and the starb ing towards the shanty was ’ an assurance of safety upon which he had a right to rely. -

This.case .is. analagous to that .of. McNamara v. Railroad (136 N. Y. 650), where it was held that, the raising of gates at a railroad crossing was a" substantial assurance of safety to a person waiting to cross, just as significant as if the gateman had beckoned to him or invited him to come on, and that £&ny prudent man would not b.e influenced by it is against all human experience.

The defendant’s counsel says that everybody who has anything to-do with a railroad knows that the swinging of the lantern crosswise of the tracks is a signal for a train to stop. No one so construed that signal except the counsel—not even the railroad men. No train stopped in obedience to L. It was- not so construed by the Wyrsings; who, construing it to be a signal of safety, started across the tracks, and had approached so near to track .1 ,thaf their horse’s head was within a foot or two of the engine and cars of the express train as it dashed over the crossing.

Defendant, insists that' as the regular flagman was-absent, and as it was not shown that the acting flagman was in defendant’s employ, it is not liable for his negligence, and that plaintiff’s in tes* tate is guilty of contributory negligence in relying upon the apparent flagman.

The company had for Some time before the accident employed and kept a flagman at that crossing night and day. The deceased knew this. The regular flagman had deserted his post for a time. He either procured this man to take his place during-his temporary absence, or, by' leaving the crossing, made it pos* sible for another to act in his place, and give false assurance of safety. So far as the question of Waldele’s contributory negligence, is concerned, it is of no moment under what arrangement the flag^ man was there; the fact remains - that- lie- was - there, acting as flagman, and .-Waldele had a right to "assume,, from the former practice and custom of defendant, that this flagman was there underemployment or authority from the company.. If he was not, he was there through the negligence of the regular .flagman in absenting himself from his post, and that negligence is imputable, to this defendant.

We are of the opinion, therefore, that the evidence did not conclusively establish negligence on the' part of the deceased. There was evidence from which a jury might have found, as matter of fact, or at least might fairly have drawn the inference, that the deceased, under all the. circumstances of the case, exercised that degree -of care and caution which prudent persons, of ordinary intelligence, usually exercise under like conditions and circumstances. We can see that the facts bearing Upon the solution of this question were such that different minds might well disagree upon the construction to be given intestate’s acts. It is especially the province of a jury to solve questions involved in such doubt or uncertainty. It was error, therefore, to refuse to submit this question to the jury.

A further question, raised by exception to the refusal of. the court; to receive certain evidence, should be considered.

The plaintiff offered in evidence an ordinance of the city of Roch'ester, providing that no railroad shall run its cars east of Brown street at a greater speed than eight miles per hour. This, was objected to by defendant’s counsel upon the ground that, it does not cover the street in question. The" objection was sustained and the plaintiff excepted. We are of the opinion that the learned justice erred in excluding this evidence.

- The ordinance must be given a reasonable construction, and, to ascertain its meaning and the intention of its framers^ as deduced from its language, the court may look at the circumstances under which it was passed. The evident intention of the city was to stop the rapid running of trains over crowded streets at grade. If the "city intended that it should apply only to the territory east of the easterly line of Brown street, then it was its intention to leave that crossing without- protection' • from- fast ■ ruhnihg train's. Brown street is in a "populous portion of the city, and in frequent use by the public. It is unreasonable to suppose that the city intended to relieve railroad corporations from restriction in the speed of their trains just at a point where it was most necessary. It would be both absurd and unreasonable to impute such an intent, if the language used, will bear a different construction. Obviously the language of this ordinance is bz-oad enough to cover the entire width of Brown stz-eet. It was clearly intended that Brown street, and not its easterly line, should forzn the limit. The train was running at the rate of forty miles an hour when it reached Brown street; by necessity the ordinance was violated,-for by no human agency could the speed of .the train have been reduced to eight miles an hoizr while passing over this crossing.

The ordinance was competent upon the question of defendant’s negligence, and should have been adznitted.

■- The plaintiff also excepted to the rejection of the testimony^ tending to show the speed of the express tz-ain.

' This evidence should nave been adznitted. The witnesses were pez’sons of ordinaz-y expez-ience, and, so far as appears, were capable of imparting to the jury a fair idea of the speed of this tz-ain. This is not a question for experts alone. A pez-son of ordinary experience can judge of the movenzent of bodies along - the streets or along the tracks of a, railroad, and the evidence of witnesses, with such expez-ience, as to the speed of a -train when it passed them, or when they saw it at a given- place and - -time, is competent and material. (Salter v. Utica & B. R. R. R. Co., 59 N. Y. 631; Northrup v. R. R. Co., 37 Hun, 299; Scully v. N. Y., L. E. & W. R. R. Co., 80 id. 197.)

We are of the opinion that there was evidence sufficient to require a submission of the ease to the jury, and that error was committed' in excluding evidence offered -on behalf of plaintiff. It, therefore, follows that a new trial must be ordered, with costs to abide the event. • ■

All concurred.

Order reversed and motion granted and a new trial ordered, with costs to abide the event.  