
    R. James Cunningham, as Administrator, etc., of Jessie C. Cunningham, Deceased, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
    Fourth Department,
    January 11, 1911.
    Railroad — negligence — injury at grade crossing — contributory negligence — failure to look — failure of automatic bell to ring.
    There can be no recovery for the death of a person who was struck by a train while driving over a.grade crossing if she were guilty of contributory negligence in failing- to look in the direction of the oncoming train where she could' have seen 500. feet in that direction when 50 feet from the crossing and farther as she neared the track. This is* true, although she had looked- in that direction at a place farther from the crossing where her view was obstructed. The fact -that an electric bell automatically operated at the crossing by oncoming trains did not ring, may be considered in connection with other facts bearing upon the question as to whether the decedent used .due care; birt that fact did not absolve her from the exercise of care where she had been informed on several other-occasions that the bell was sometimes out of order and did not ring.' Reuse, J., dissented.
    Appeal by the plaintiff, R. James Cunningham, as administrator;' etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 23d day of October, 1909, upon the dismissal of the complaint, by direction of the court at the close of the plaintiff’s case, on a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 9th day of November, 1909, denying the plaintiff’s motion for a new trial made upon the minutes. ,
    
      D. P. Morehouse, for the-appellant.
    
      A. D. Jenney, for the .respondent.
   Robson, J.:

Plaintiff’s intestate shortly before nine o’clock on January 28, 1909, while driving northerly across defendant’s track was struck and killed by the- locomotive hauling defendant’s west-bound passenger train. The highway on which decedent- was driving was practically level and apparently in good condition. Defendant’s tracks cross this highway in . a northwesterly and southeasterly direction. ■ The angle made by the line of -the highway as decedent approached the tracks with the line of the defendant’s tracks on which defendant’s train was -moving was about seventy degrees, as is stated.. Due to this angle the train came somewhat from the rear of decedent and, as she was riding in a covered buggy with the top up and side curtains in place, she could not readily look in the direction from which the train approached without leaning forward and looking to the right around the front of the carriage top, It "was broad daylight and she was in full possession of her faculties, accustomed to drive and manage horses, and the horse she was driving was gentle and perfectly under her control. As she approachedthe crossing her view of a train approaching from the east was obscured by buildings and trees in the angle between the highway and the track and also b.yfences and the rising ground, the gradual upward slope of-which began about 100 feet, from the. crossing through which a cut . for the track had been.made.; but after passing these obstructions and from a point at least 80 feet from the track continuously until the track was reached her view of an approaching train .was not materially interfered with except by the rising ground and the fence of the cattle guard. At 50 feet from the crossing the tracks themselves are. plainly visible for more than 500 feet in that direction and the view rapidly enlarges from that point on. There is evi-. dence that decedent looked to her right, i. e., in the direction from which the train was approaching, ata point more than 200 feet, from the crossing, her head and shoulders bemg visible to the witness as she looked out around the buggy top. But at this point looking - was- unavailing because of the intervening obstructions, to which I have referred; and, besides, at that time the train, moving, as is claimed, at the rate of sixty miles an hour and she at the rate of live miles an hour, would have been more than 2,400 feet away. ¡From that time on there is absolutely no' evidence of any care or caution whatever on the part of decedent, though witnesses saw the rig as it approached the track almost continuously from that time on, and from a distance of 50 feet from the track a witness in a house on the other side of the track looking directly towards her as she approached'the track says that she did not look, as he would have seen her if she had. The horse jogged along at the same slow trot from the time the rig was first seen until it. crossed the tracks in safety, the locomotive striking the wagon and demolishing it. The horse was but slightly injured.

This seems to be a statement of the facts disclosed by the evidence as to what decedent did, ór did not do, as she went towards the track as favorable to plaintiff’s claim that she was not guilty of contributory negligence as the évidence will warrant, either directly, or by legitimate inference therefrom, except for a further fact to which I will in a moment, refer. If plaintiff’s right to recover depended alone upon the facts above stated, there could scarcely be a question that absence of contributory negligence had not been established. To recapitulate: Her view to the right from the point where any view was possible was not materially obstructed. The approach of a train from the other direction was no disturbing factor as the track in that direction lay open to her view for at least half a mile, and the top of' the buggy did not interfere with her view in that direction. There was no. unusual circumstance or condition by way of passing trains, or crowds, or sounds preventing belli earing the approach of the train, or diverting her attention even . momentarily from the fact that she was approaching this place of danger, and she was thoroughly familiar with the situation and surroundings. Having looked but once at a distance of more than 200 feet from the crossing at a point where she must have known she could see nothing of an approaching train, which would not have passed the crossing long before she could possibly reach it, and knowing that any train which would endanger her safety would necessarily then be not within her view, she proceeded steadily along without further act or effort to ascertain whether a train was coming, and the accident followed. ^

The other fact upon which appellant relies as raising L question which it is claimed entitled him to have the question of decedent’s contributory.negligence passed upon by the'jury is that the electric signal bell at the crossing was out Of service at that time and gave no warning of the-approach of the train. It is claimed that, if this bell-was not sounding its,warning, that fact was an assurance that; no train -was approaching within the distance which the bell should, if in commission, give warning of its approach, in this' case something like half a mile. The fact that the bell did not sound was of 'course material, to be considered' together with the other facts bean ing-upon the question whether decedent was in the exercise of reasonable care and caution when she attempted to cross the track. Even the fact that gates in the immediate charge of an operator were raised does not absolve a person crossing a railroad track upon which trains are operated, from the exercise of some individual care and. reasonable exercise of personal observation, dependent as to extent upon the circumstances. But these stationary signal bells are mechanical devices operating automatically and it is well known are not absolutely reliable, and their mechanism is 'liable to occasional disarrangement putting them temporarily, at least, out of service. We are not left to rely wholly upon the presumption that'decedent knew-and appreciated this fact, for her hiisbatid, who, as administrator, is the plaintiff in this action, testifies that he knew this bell - did not operate on several prior ■ occasions and that, in the presence of deceased, he several times spoke of it. The fact that such a bell is not ringing can at most be taken as- indicating either one of two things, that no' train is within the zone of its operation, or that it is itself out of commission. Its silence is, therefore, no affirmative assurance of safety to the traveler like raising of' crossing gates, or the invitation to proceed given by the crossing watchman. If decedent relied alone upon the assumption that, because the warning bell was not sounding, no train was approaching near enough to endanger her safety and in that reliance went upon the track she was guilty of contributory, negligence-. The evidence warrants no, other inference than that she took no precaution either by looking or listening at a time when either would have availed to assure herself that a train was not approaching, and it follows that the non-suit was Properly granted. A case squarely in point is McSweeney v. Erie R. R. Co. (93 App. Div. 496), decided by this court in the Second Department, which was the authority relied upon by the' trial court. This extract from the opinion expresses my conclusion in the present case: “ To my mind, the evidence indicates that the occupants of the buggy drove onto the crossing confident in their safety, because of the silence of the stationary signal bell, and without the observance of that, care which the law imposed upon them, notwithstanding the omission of the signal.” That case was again followed in that department in Gowdey v. Erie R. R. Co. (113 App. Div. 913), which was an.action brought by the administrator of the estate of the other occupant of the buggy, who lost his life in the' same accident.

The case of Flanagan v. N. Y. C. & H. R. R. R. Co. (70 App. Div. 505), a case in this department, is not at variance with the MoSweeney case.

. I

All concurred, except Kruse, J., who dissented upon the ground that in view of the silence of the crossing bell, what the deceased did for her own safety was sufficient to make' the question of her contributory negligence one of fact.

Judgment and order affirmed, with costs.  