
    James Stott, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    
      1. Negligence—Railroad crossing.
    Plaintiff drove up to a railroad crossing as a milk train was passing, and waited for it to go by, sitting facing the track. As he attempted to proceed his cart was struck by a train which was running rapidly on the other track, and he was injured. It appeared from the testimony that the bell was not rung until the train was within 100 feet of the crossing. Reid, that there was sufficient evidence to authorize the jury to infer that plaintiff took the usual precautions.
    2. ¡Iamb—Evidence—Photograph.
    A photograph of the scene of the accident is admissible, although the situation had been changed before it was taken.
    (Dykman, J., dissents.)
    
      Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action for personal injuries sustained at the Main street crossing of defendant’s road, in Goshen, 1ST. Y.
    Plaintiff was riding with one Parshall, and as they came to defendant’s crossing found a milk train passing. They waited for it to pass, sitting facing the track. After it had gone by, the flagman folded his flag, put it under his arm, and moved away. They then started to cross, when a train came rapidly on the other track, the horse wheeled onto that track, and the cart was struck by the engine, and plaintiff was injured.
    
      Lewis M Carr, for app’lt;
    
      W. F. O’Neil, for resp’t.
   Pratt, J.

Appellants urge that the proof fails to show that plaintiff stopped and looked and listened before attempting to cross defendant’s track.

The trial judge charged the jury that unless he took those precautions he could not recover; and the verdict shows that the j urv believed those precautions were taken. The appeal book is not certified to contain the whole evidence, and as no motion for non-suit was made at the close of plaintiff’s case we may presume the defendant’s counsel were then of opinion the plaintiff had established his right to go to the jury.

Moreover, from the testimony, as it appears, the jury may well have inferred these precautions were taken. It is shown that when plaintiff approached the track a milk train passed, and during the passage the plaintiff sat in the wagon facing the track. As he was not deaf nor dumb nor asleep, the jury may have presumed that his senses were in use. Counsel suggest that as other witnesses testify they saw and heard the coming train, the plaintiff would likewise have seen and heard had his senses been alert.

But the flagman places the train at a distance of ninety feet when he saw it, and the witness who testifies to the bell says the train was 100 feet from the crossing when the bell rung. That distance is passed by a rapid train in two or three seconds, and the warning was then too late to be useful.

Apparently the horse saw the train before the flagman, for he turned and galloped fifty feet down the track before overtaken by the train.

The appellant also objects that plaintiff was permitted to put in evidence a photograph of the crossing, by which the jury were enabled to learn that since the accident the defendant had erected gates.

We are not able to see that this objection is well taken. To show the jury the place where an inspection would aid them is a familiar practice. We are not aware it has ever been held that if one party to a litigation has changed the situation the other must lose the right to show the premises to a jury. A photograph is an easier way to accomplish the same result.

We find no valid ground of exception, and the judgment must be affirmed, with costs.

Culler, J., concurs; Dykmar, J., dissents.  