
    William Howard, Resp’t, v. The Northern Central, Railroad Company, App’lt.
    
      (Supreme Court, General Term, F'fth Department,
    
    
      Filed June 23, 1888.)
    
    1. Railroad crossing—Duty of traveler approaching.
    An individual in approaching upon the highway a railroad crossing is approaching a known place of danger, and the duty devolves upon him of making use of his eyes and ears for the purpose of determining whether or not trains are approaching (the duty exists whether it is train time or not), and in failing to do so he cannot recover for injuries received.
    2. Same—Negligence—Contributory negligence—When shown.
    On the trial of the action it appeared that in the village of Sodus Point a branch track leaves the main track near the station of defendant’s road and runs along the north side of a certain street. On the night in question, about nine o’clock, when it was dark, there were two coaches (lighted so that the light shone out in front, and on the forward platform of which was a brakeman with a red lantern and another to tend the brake), run down this branch track by force of gravity at the rate of five miles an hour. As they proceeded there was a rumbling noise made by their wheels The plaintiff, who was walking in the same direction that the said cars were moving on said street, crossed it diagonally and stepped upon the track without looking and was struck and injured by these coaches The train from which the coaches had been detached was two hours late, and the place of the accident was over five hundred feet from where the branch track left the main track and where it crossed the tracks of another railroad. Held, that the plaintiff was guilty of contributory negligence and should have been nonsuited. Woodard v. The JT. T„ L. E. and W. B. B. Co., 106 N. Y„ 369; 11 N. Y, State Rep. 169, disguished.
    Appeal from a judgment entered upon a verdict at the Wayne circuit, and from an order denying defendant’s motion for a new trial.
    
      J. W. Dunwell, for resp’t; George W. Diven, for appl’t.
   Haight, J.

This action was brought to recover damages for a personal injury received at a highway crossing at the village of Sodus Point. In that village a branch track leaves the main track a short distance east of the defendant’s station and runs east to the bay on the northern side of Scentell street. At a distance of 510 feet from the switch the Lyons or Alton road crosses the branch track at nearly right angles. The post-office is located on the south side of Scentell street about half-way between the station house and the Lyons or Alton road; and Scott’s meat market is located between the post-office and that road. At about a quarter to nine o’clock of the evening of September 25, 1887, the plaintiff left the post- office and walked down on the sidewalk to Scott’s meat-market. He then left the meat-market and walked down to the Lyons or Alton road; then turned and crossed Scentell street to the branch track and while crossing the branch track was struck by the cars, knocked over and one of his feet crushed, rendering an amputation of the toes necessary. The mail train had shortly before arrived upon the main track; had discharged its passengers and two coaches were switched upon the branch track to be run down to the bay. The grade descended from the switch down to the bay and the cars were being run down by the force of gravity. Upon the platform of the forward end of the coach as they were running down to the bay were two brakemen, one holding an ordinary railroad lantern and the other holding the brake.

The interior of the cars was lighted and the lights shown through the windows. There were twelve or fifteen persons that left the post-office at about the same time, and were walking along down the sidewalk in company with the plaintiff to the place of the accident. The plaintiff lived in the village and was familiar with the crossing in question, and he testified that before attempting to cross the track he looked both ways to see if there was any train, but he saw and heard none, and did not see the cars until he was struck. Most of the other witnesses present, saw and heard the cars approach, and four or five testified that they heard the brakeman upon the cars halloo a warning to persons crossing the track. Some of the witnesses testified that they saw the plaintiff when he approached the track; that he walked diagonally across the street, and started upon the track without looking to the right or left, for the approach of cars. These witnesses were mostly residents of the village, who had been to the post-office to get their mail and were not connected with the defendant corporation. There was no obstruction from the Lyons or Alton róad, that prevented a view of the track or of the cars running upon it up to the switch. The cars were running down upon the north side of the street; the plaintiff with twelve or fifteen others, was walking down upon the sidewalk in the same direction, upon the south side of the street. The cars were running at the rate of from four to five miles per hour, or a little faster than a man would walk. The plaintiff in walking down the sidewalk had his back to the approaching cars, and if he crossed the street diagonally, still had his back partially in that direction. There is some variance in the testimony of the witnesses, but those of the plaintiff and of the defendant substantially agree upon the main facts.

When the plaintiff rested, the defendant moved for a non-suit, upon the ground that the evidence established the fact that the plaintiff was guilty of contributory negligence. The court denied the motion, and at the conclusion of the evidence the defendant renewed the motion upon the same grounds, which was also denied and exception taken.

The question is thus presented as to whether the plaintiff was guilty of contributory negligence which contributed to or caused the injury in question. It is well settled that an individual in approaching upon the highway a railroad crossing is approaching a known place of danger, and the duty devolves upon him of making use of his eyes and ears for the purpose of determining whether or not trains are approaching; and in failing to do so, he cannot recover for injuries received. It was a dark night, but the evidence is overwhelming on the part of both the plaintiff’s and defendant’s witnesses that there was a light upon the forward platform of the approaching cars; that they were lighted inside, and the light shone through the windows; that in running down to the bay the rumble of the wheels made a noise that was distinctly heard by many of the persons in the company. It would seem that under such circumstances, if the plaintiff had looked back upon the track before attempting to cross, he must of necessity have seen the approaching cars as they were coming down upon the opposite side of an open street with no obstacle to obstruct his view. The theory of the defense, which is in accord with the declarations of the plaintiff as testified to by some of the officers of the defendant, to the effect that his mind was absorbed and that he was walking along without thinking of the railroad crossing or looking up, presents, to our mind, the rational explanation of his conduct on that occasion. If we are correct in this conclusion, it follows that the plaintiff was guilty of negligence in entering upon the railroad track without looking and listening as he was in duty bound to do.

Upon this question the case of Woodard v. The N. Y., L. E. and W.R.R. Co. (106 N.Y. 369; 11 N. Y. State Rep., 169) appears to be controlling. In that case a freight car had been kicked or pushed down from the west and was moving by its own momentum at the rate of about four miles an hour down a branch track in the village of Hornellsville across one of the streets of that village at quite an acute angle. A building stood within thirty-one feet of the track and after passing the building the track could be seen a distance of only fifty seven feet, and within ten feet of the track it could be seen one hundred and thirty-seven feet.

Upon the further side of the branch track a train was crossing the highway going west upon another track. The plaintiff was engaged in carrying a bushel basket full of coal. He passed along the sidewalk onto the track, and was struck by the freight car and killed. It was held that his administratrix could not recover and the judgment was reversed; that had he looked, it was absolutely; certain that he must have seen the car coming. To our mind the facts of that case make a stronger case for the plaintiff than the facts disclosed in this case. In that case the deceased was approaching the railroad track at an acute angle. It was obstructed from view but for a short distance. He was engaged in carrying a basket of coal, and might have had his attention diverted by the passing train upon another track, the noise of which prevented his hearing the approach of the car which caused his death. But in this case nothing but the darkness could obscure the vision; and that could not obscure the lights upon the train or that shown through the windows of the cars. No other train was passing to attract attention, neither was the plaintiff engaged in carrying a heavy package which required the exorcise of a large portion of his strength.

The trial judge in his charge comments upon the fact that the train arrived that evening two hours late, and submitted to the jury the question as to whether or not this circumstance might not reasonably have released the plaintiff in a measure from the degree of precaution which might otherwise be required of him. It appears to us that this circumstance did not excuse him. The station was but a short distance away in view of the plaintiff. There were but a few buildings in the village at this place to obstruct the vision. The tram that arrived was the train bringing the mail,- which could not be distributed at the postoffice until its arrival. The plaintiff, with twelve or fifteen others, as we have seen, were at the post-office to get the evening mail, and it is hardly possible that they could be deceived as to the time that the train and mail arrived; but whether they were or not, a railroad track is a known place of danger and trains are liable to be run over it out of schedule time. So that, whether it is train time or not, the duty exists of looking and listening for the approach of a train before crossing the track.

The motion for a nonsuit or a direction of a verdict for the defendant should have been granted. The judgment and order should consequently be reversed and a new trial ordered, costs to abide event.

Barker, P. J., and Bradley, J., concur.  