
    Thomas Brickell, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 22, 1890.)
    
    
      1. Negligence—Contbebutoby negligence.
    Where a passenger about to cross a railroad track is sitting on the same seat with the driver, with the same knowledge of the road and the crossing, he is bound himself to look and listen and if he does not do so he is guilty of contributory negligence.
    
      %. Same.
    The rule that the driver’s negligence may not be imputed to the traveler is only applicable where the relation of master and servant or principal and agent does not exist, or where the passenger is seated away from the driver or is separated from him hy any enclosure and is without opportunity to discover danger and to inform the driver of it.
    This is an appeal from a judgment of the general term, fourth department, affirming a judgment of non-suit and dismissal of the ■complaint.
    The action was brought to recover damages alleged to have been sustained by plaintiff from a collision between the wagon in which plaintiff was riding and the engine hauling a train of the defendant’s at a highway-crossing of the defendant’s road near Palmyra.
    The plaintiff was riding and occupying the same seat with the driver of a single horse before a buggy wagon and paid the driver for carrying him a short distance from a station on the Central road to the village of Palmyra. In so doing it became necessary to cross the track of the West Shore Bailroad, where the collision •occurred The time was in the early part of the afternoon and it had been snc-wing somewhat before and the wind was blowing while plaintiff was being carried in the buggy with the top raised and closed except its front, to the crossing. The evidence given by the plaintiff and the driver, together with that given by every other witness sworn in behalf of plaintiff, shows beyond dispute "that the West Shore Bailroad can be seen for a good distance at many points on the route and especially at the south end of a bridge which the plaintiff and his driver crossed in reaching the ■crossing where the collision took place, a distance of one or two hundred feet from the bridge; that the plaintiff and the driver made no further effort after leaving and while passing over the space between the bridge and the crossing to learn whether a train of cars might be approaching, but drove along at a brisk trot till they .got within about thirty yards of the crossing, when they or the horse (probably the horse), first heard the sound of the train approaching the crossing. It does not appear what the plaintiff and driver were engaged in up to this point from the time of leaving the south end of the bridge.
    
      G. JET. Sedgwick, for app’lt; M M. Waters, for resp’t
    
      
       Affirming 12 N. Y. State Rep., 450.
    
   Potter, J.

This evidence indicates to my mind, not merely a failure to show that absence or freedom from contributory negligence which is necessary to be shown upon the behalf of the plaintiff in •order to sustain a recovery for negligence upon the part of a railroad company, but clearly and beyond any question the actual existence of negligence of the driver and of the plaintiff which contributed to the plaintiff’s injury.

The excuse attempted to be set up for such conduct, that the top of the buggy and the snow ana wind rendered it more difficult to hear the noise of an approaching train, seems to prove and emphasize their carelessness and want of attention in making no effort under those circumstances to learn there was no train approaching the crossing. They well knew of this condition of things and of the location and surroundings of the crossing, and that they were called upon to use more than ordinary prudence in effecting the crossing under such circumstances.

The general rule in this class of cases is that the burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff, or in the language of the opinion in Tolman v. The Syr., B. & N. Y. R. R. Co., 98 N. Y., 202, that “ plaintiff approached the crossing where the collision and injury occurred, with prudence and care and with senses alert to the possibility of approaching danger.” And this rule obtains even where the railroad company neglects to ring its bell or sound its whistle as required when its trains approach a crossing. Cullen v. The Prest., etc., 113 N. Y., 668; 23 N. Y. State Rep., 719. Nor do I think that this rule is to be relaxed in favor of the plaintiff because of the fact that he was being carried in a vehicle owned and driven by another. The rule that the driver’s negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant, or principal and agent does not exist, or where the passenger is seated away from the driver or is separated from the driver by an enclosure, and is without opportunity to discover danger and to inform the driver of it. Robinson v. The N. Y. C. & H. R. R. R. Co., 66 N. Y., 11.

It is no less the duty of the passenger, where he hast he opportunity to do so, than of the driver to learn of danger and avoid it, if practicable. The plaintiff was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and the environments and with at least the same, if not better, opportunity of discovering dangers as the driver possessed and without any embarrassment in communicating them to him. The rule in such case is laid down in Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y., 199; 19 N. Y. State Rep., 80, where husband and wife were sitting upon the same seat in a vehicle driven by the husband and both, were killed by a collision at a crossing, and in an action brought by the administratrix of the wife against the railroad company it was held, “ that she had no right, because her husband was driving, to omit some reasonable and prudent effort to see for herself that the crossing was safe.” “ She was bound to look and listen.”

The judgment should be affirmed, with costs.

All concur, except Follett, Ch. J., not sitting, and Bradley» J., not voting.  