
    Helen Boll, Resp’t, v. The Adirondack Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    Negligence—Railroads—Collision between hand-car and wagon at
    CROSSING OP PUBLIC HIGHWAY.
    Where, in an action to recover damages for an injury to plaintiff hy a collision at a crossing of a public highway of a hand-car propelled by the servants of the defendant and the wagon in which the plaintiff was riding, which collision overturned the wagon, and threw plaintiff out, seriously injuring him; it appeared on the trial that the plaintiff, before approaching the track, stopped his horse and looked up and down the track, and, seeing nothing, drove on. That the view of the track from the road was somewhat obstructed by trees, a fence and other objects. That the hand■car was running on a down grade at about the speed of five miles an hour, and that the persons on the car saw the plaintiff approaching the track, but did not stop or delay the car until plaintiff had crossed. Held, •that it was for the jury to determine whether an object on the track of the -size and form described, and proceeding at the speed stated with.no working of machinery, and consequently causing but little noise, would be likely to attract the attention of a person traveling as the plaintiff was upon a public highway, and whether the defendant’s servants were not .guilty of negligence in not stopping or delaying the car when they saw "the plaintiff approaching, and whether, in view of the circumstances, the plaintiff exercised the degree of care and caution which could reasonably be required of her so as to exempt her from contributory negligence.
    Appeal by the defendant from a judgment entered in .favor of the plaintiff after a trial at the circuit.
    
      Matthew Hale, for app’lt; W. Brackett, for resp’t.
   Ingalls, J.

—On the 24th day of July, 1888, the plaintiff was returning to her home from Saratoga Springs by the public highway. She was riding alone in a carriage drawn by one horse, which she was driving, and descended a considerable of a hill which extended nearly to the crossing of the ■defendant’s railway. When nearly over such crossing, the ■carriage was struck by a hand car running upon the track ■of the defendant’s road, in charge of the defendant’s servants, and the carriage was turned over, and the plaintiff was thrown out and injured. The plaintiff testified, in her ■own behalf, upon the trial, and among other things, stated as follows: I reside in the town of Greenfield, with my husband, John Boll; have resided there about twenty-three years; am about a half a mile or a little over, frortí the "track of the Adirondack Bailway Company; about three miles by the road from the village of Saratoga Springs; in ■coming home from the village, I come by John Braham’s and others, and by Judge Hilton’s park; I remember the day I was thrown out of my carriage; it was the 24th day of July, 1888; I had been to Saratoga on business; had a horse shod, and got some groceries; started from home about two o’clock; started to come home about five o’clock; went by Hilton’s park; heard the noise of the train about á mile from home; just before I got to Daniel’s place, I heard a noise and heard a whistle, and saw the train going to Saratoga on the Adirondack track; saw it away from the village; from Boll’s crossing; it had passed by where I was. hurt; I passed on going home; there I turned up to the-right around'corner; you go at right angles; I think Daniel’scorner is less than a mile from the crossing where I was. thrown out; when I came up near the railroad, I looked at the track up and down, and didn’t see nothing, and passed on; when I looked up and down, I was down below that, little hill in the hollow; the hollow is a kind of a turn; a low place; it is near to Hilton’s fence; there is a bend in the' track where you went from the west fence, almost to the east fence; that is before you come to the railroad track; I; stopped in that hollow; I remember where the road bends from that point to go nearly across; it bends: in that hollow; that is the hollow where I looked;, when I got in that hollow, I looked both ways, and didn’t see anything, and didn’t hear anything, and. then I passed on; I listened; looked both ways; I looked to the left on the railroad track and then to the right on the railroad track; it was before six o’clock; pretty near six o’clock; I had seen the train go down; I don’t know whether there was any other train due about that time; that was always the last passenger train; I don’t know of any other; after I had looked both ways and listened at the little hollow, I passed right on;. I didn’t see anything when. I looked on the track, either way; I didn’t hear anything; as I passed on; was going on just a good walk; my horse was walking; he didn’t trot; he walked right on; a good gait; he didn’t walk fast; I couldn’t tell how fast he was: going; I had been over three-quarters of an hour coming; from the village; started from there pretty near five o’clock, and it was then pretty near six o’clock; I went along until I got to the middle of the track, and heard a. noise and turned my head, and saw a hand-car' and two-men with full power working it, and I saw I couldn’t get, back and I struck the horse and he went ahead; I thought, if I turned back it might strike his feet; and after the horse went across I heard a shock, and that is all I know; I was. thrown over to the right side, towards Hilton’s fence; I. had the lines in my hands when I got struck; I don’t remember anything more; after that I was lying across the-road next to the fence; I didn’t know anything first, and the railroad boys came up and says to me, “Woman, I" thought you was killed; it is a wonder you was not killed;”' the other men coming this way took the horse and straightened the horse up, and I sat there a few minutes on the-ground and then I crawled up on my hands and feet and they brushed me off.

The evidence shows that in descending the hill, the view,. in the direction of the railway track, was somewhat -obstructed by trees, fence and other objects; the witnesses differ in regard to the extent of such obstruction. The plaintiff stated that she listened, and looked in both directions along the track of the railway, before she attempted to. cross, and that she neither heard or saw anything upon the track until the carriage was struck by the hand-car. The hand-car was running upon a down grade and no force was applied by the men in charge to propel it. Michael Christopher, who was in the employment of the defendant, and upon this occasion had charge of the men, and the work, testified: “On this occasion I was coming home to Saratoga, after our day’s work, with the men; we had been at work that day about a mile north of the trestle-work; -north or west up the track from Saratoga; there were five men with me; they are here; I started from a point about a anile up the track; went down over this trestle-work spoken -of; I first saw this woman with a horse and wagon just ■over half way from the rise of the hill, on the main road, ■coming toward the railroad crossing; she was over half way down; I was sitting in front on the hand-car with one of the men with me; feet hanging off the platform; saw ker when she was more than half way down the hill; could ■see her plainly; it was broad daylight, a little before six o’clock; about ten minutes before six; there was nothing -at all to obstruct my view of the woman, as I was there on the hand-car; I couldn’t tell at what rate she was driving; the horse was going about as slow as she wanted him to; a slow motion; I saw she looked, off and on, at us fellows from the trestle work; as near as I could judge, we were going about five miles an hour with the hand-car; there was no one working the handles there; it was a down grade; the handles hadn’t been worked at all from the time we started; there was no need of it, because it was all down grade; it worked itself; the car went by its momentum; there was another man with me sitting down, and two men in the rear; two men standing up; I shouted to Mrs. Boll before I came within fifty feet of her to hold on the horse and let us go by; she was then as much as ten feet from the railroad crossing; it seems she didn’t pay any attention to my call; she passed right along, and let the horse go; when we found she was going on the track, I hollered to the man that was on the brake and told him to put on the brake as quick as he could, and he did it; did all we could to stop the car, and succeeded it stopping it, but not •until after it hit the wagon.”

It appears that this witness first saw the plaintiff when about half way down the hil, and approaching the crossing, and, according to his evidence, the car was' running at the rate of five miles an hour. The car is described as three feet high, eight feet long and five feet wide, and the top of the platform was one foot and seven inches above the rail. It was, we think, for the jury to determine, in view of all. the circumstances, whether an object upon the track of the-size and form described, and proceeding at the speed stated, with no working of the machinery by the men, and consequently causing but little noise or motion, would be likely to attract the attention of a person traveling as the plaintiff was upon the highway. Even though she had seen the car at some distance, she might have supposed it was a stationary object as it was running at such moderate speed, and the men not working the brakes or rhaking any motions calculated to attract attention.

It was quite unlike a train of cars propelled by steam, which is well calculated to attract the attention of a person approaching the track of a railway by its size, noise, smoke and signals. Adolph v. Cent. Park N. and E. R. R. Co., 76 N. Y., 530.

Again such hand car ran on no schedule time, and would not probably be expected even by a person who was, familiar with this railway, as the plaintiff seems to have-been. It is evident from the statements of the defendant’s witnesses that the car was under control, so that it would have been stopped within a short distance, yet the-superintendent in charge, with full knowledge that the plaintiff was approaching the crossing, made no effort-even to check the speed until within a moment of the collision. The only excuse rendered for not stopping the car in time was that the superintendent assumed that the plaintiff had discovered the car approaching, and would' not attempt to cross the track before the car had passed. It therefore appears that the servants of the defendant saw the plaintiff approaching the track without stopping her-horse, and instead of delaying the car until she had crossed' the track, they took the risk and proceeded, causing tbe^ injury_ of which the plaintiff complains. The plaintiff, according "to her evidence, listened and looked up and down the track to ascertain whether any car was approaching, and discovering none drove on to the track, and the collision occurred. It was the province of the jury to determine whether she was truthful in her statements, and whether, in view of all the circumstances, she exercised the-degree of care and caution which could reasonably be required of her, so as to exempt her from a charge of contributory negligence. This case is peculiar in some of its features, and regarding all the facts and circumstances, we-conclude that it was proper to submit it to the jury for-their determination, in regard to charge of negligence on. the part of the defendant, through the conduct of its servants. And also as to whether the plaintiff was chargeable with contributory negligence. And the jury having rendered their verdict in favor of the plaintiff, we do not feel called upon in view of the facts to reverse the judgment entered thereon. The charge of the learned- justice seems-to have been impartial, ¿nd to have presented to the jury the real questions involved in the controversy, and in a manner calculated to aid them in considering the case.

We have examined the exceptions taken by the defendant’s counsel to the charge, and the refusal to chargeby the court as requested by such counsel. And considering such exceptions in the light of the entire charge and regarding the peculiar features of the case, we discover no error which in our judgment could have prejudiced the defendant’s case, or which calls for a new trial of the action.

The judgment should be affirmed, with costs.

Learned, P, J., and Landon, J., concur.  