
    Charlotte Lewis, as Administratrix, etc., of Charles H. Lewis, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    
      Negligence — collision between a railroad train and a stage — when a case must be submitted to the jury — it must be even where a verdict for the plaintiff will be set aside — where a nonsuit is granted all inferences are indulged in favor of the plaintiff—when a party crossing a railroad is not negligent in not looking and listening.
    
    Upon a jury trial, the case must be submitted to the jury where conflicting evidence fairly presents questions of fact for the determination of the jury, and where the result depends upon the weight which may he given by the Jury to the evidence presented on behalf of the respective parties.
    Such submission must be made, even though the trial judge may deem it his duty, if the verdict he for th$ plaintiff, to set it aside, as against the weight of evidence, and grant a new trial.
    Upon an appeal by the defendant in an action, from an order setting aside a non-suit and granting a new trial, the plaintiff is entitled to the most favorable' inferences deducible from the evidence and every disputed fact must be treated as established in her favor.
    Where, in an action brought to recover damages resulting from the death of the plaintiff's intestate, who was killed in a collision at a highway crossing between one of the defendant’s trains and an omnibus which he was driving, evidence is given from which the jury might have found that the intestate could not have seen or heard the approaching train until the instant when his horses reached the track and until it was too late to avoid the accident, it is improper for the court to dismiss the complaint on the ground that the intestate was not shown to have been free from contributory negligence, even though there is no direct evidence that the intestate did look or listen before attempting to cross the track.
    In such a case the jury may find that the intestate was relieved from the application of the general rule, requiring persons to look and listen before crossing at grade the tracks of a railroad, upon the ground that liad he done so he could not have seen or heard the train until too late to avoid the collision.
    Chase and Houghton, JJ., dissented.
    Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 5th day of August, 1904, setting aside a nonsuit theretofore granted in the action and granting a new trial.,
    The action is one to recover damages for the alleged negligent killing, by one of defendant’s trains running easterly, of .plaintiff’s intestate while he was attempting to cross defendant’s railroad at Broad street in Lestershire. He approached the crossing going northerly on Broad street on a slightly descending grade, driving a heavy two-horse bus or band wagon. The view of the tracks westerly, as the crossing is approached from the south at that place, is obscured by a high bank about twenty-five feet south of the southwest corner of the passenger depot on the south side of the tracks and by such depot, except for a short distance between the depot and the bank and except after the depot has been passed and a point about twenty feet south of the first or south rail has been reached, where the track can be seen for about one hundred feet west of the crossing. The passenger depot is but twelve feet south of such first rail. The distance from the heads of the horses to the eyes of the driver when seated in the bus was fourteen feet. The train was not scheduled to stop at that station; it was about thirty-five minutes late and was running at not less than sixty or sixty-five miles an hour. The engineer testified he was running as fast as he could. The engine struck the team and tfirew the plaintiff’s intestate a considerable distance against a box car standing on a side track, killing him instantly. At the close of the plaintiff’s proof the court denied the defendant’s motion for a nonsuit, but at the close of all the evidence the motion was renewed and granted on the ground that the evidence failed to show that the deceased was free from contributory negligence. The plaintiff excepted and made a motion for a new trial on the minutes which, after consideration, was granted. From the oi'der setting aside the nonsuit and granting a new trial the defendant appeals.
    
      H. Fred Lyon and W. D. Painter, for the appellant.
    
      H. D. Hinman, A. Howard and T. B. Kattell, for the respondent.
   Chester, J. :

The only question presented for decision in this appeal is whether the evidence was such as required the submission of the case to the jury in the first instance. It is settled by the authorities that such submission is required where conflicting evidence fairly presents questions of fact for determination and where the result depends upon the weight which might be given by the jury to the evidence presented on behalf of the respective parties (Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671; McDonald v. Metropolitan Street Ry. Co., 167 id. 66; Place v. N. Y. C. & H. R. R. R. Co., Id. 345), and this is the rule even though the court might deem it its duty to set aside a verdict for the plaintiff and grant a new trial as against the weight or preponderance of the evidence. (Same cases.)

The plaintiff, in support of the order appealed from, is entitled to the most favorable inferences deducible from the evidence, and every disputed fact must be treated as established in her favor. (Higgins v. Eagleton, 155 N. Y. 466.)

Applying this rule, I am of the opinion that the jury might have ■found from the evidence that the deceased could not have seen or heard the approaching train until the instant his horses reached the track, and too late to prevent the accident. There was, I think, sufficient evidence showing or tending to show this, and showing or tending to show that the situation was such that if he had looked and listened he could not have seen or heard the train until it was too late, and, therefore, a question was presented for the determination of the jury. (Smedis v. B. & R. R. R. R. Co., 88 N. Y. 13 ; Fejdowski v. D. & H. C. Co., 168 id. 505.)

The evidence was such that the jury might have found facts which would have relieved him from the application of the general rule requiring persons to look and listen before crossing at grade the tracks of a railroad. (Oases last cited.) While there was no direct evidence that the deceased did look and listen, there is some evidence from which the jury might have found that he exercised care in approaching the crossing.

There was some conflict in the evidence as to the speed of the train, one of plaintiff’s witnesses swearing to facts from which the jury might have found that it was running about seventy-five miles an hour. The engineer’s estimate of speed was about sixty or sixty-five miles an hour. Different inferences could have been drawn by the jury from the evidence as to the speed with which the deceased was driving just before he was struck, and different inferences co-uld have been drawn from the evidence relating to the distance' within which the bus could have been stopped, loaded as it was with thirteen men and a boy besides the driver, and going on a slightly •descending grade. The defendant claims that the evidence shows that it could have been stopped instantly, and some of the plaintiff's evidence was that it could not be stopped in less than fifteen feet. There was also much conflict in the evidence on the question whether or not any warning of the approach of the train to the •crossing was given.

The argument by the defendant’s counsel that plaintiff’s intestate could have seen the approaching train if he had looked between the bank and the depot is based upon inferences drawn from ijhe evidence most favorable to the defendant as to the speed of the train •and of the team, and contrary to the rule above mentioned. If ■calculations as to such speed are based upon inferences from the •evidence most favorable to the plaintiff, the jury might have found that the train was not in sight when plaintiff’s intestate was where he could look at the tracks between the bank and the depot, and that when he reached a point where he could see the train on the other side of the depot his horses were already on the track and the train nearly upon him, or that he was unable to stop them or back them off the track in time to prevent collision with the engine.

Upon the evidence we cannot say that the contributory negligence of the deceased was conclusively established, nor that the ■evidence left nothing, either of inference or of fact, in doubt or to be settled by a jury. The question of contributory negligence, therefore, as well as of defendant’s negligence, should have been •submitted to the jury. (Massoth v. D. & H. C. Co., 64 N. Y. 524.)

The order setting aside the nonsuit and granting a new trial was proper and should be affirmed, with costs.

All concurred, except Chase and Houghton, JJ., dissenting.

Order affirmed, with costs.  