
    John W. Haywood, as Adm’r, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    1. Negligence—Railroads—Gates at crossings.
    The six tracks of the defendant, running north and south, occupied a breadth of 143 feet where they were crossed by a street in a city nearly at' right angles. There were gates at each end of the crossing composed of long poles worked by cranks which raised and lowered them in the usual way. One gate was shut, the further one, as deceased approached; the other had been shut, but had been thereafter lifted up by a woman who wished to pass shortly before deceased drove up. He was going east, seated in a covered milk wagon near its middle, with cans in front and behind him, and could look out only in front. A freight train at rest cut oñ his view of the last four of the six tracks. He was struck by a train on the next track beyond that upon which the train at rest stood. Eeld, that the case was one for the jury; that negligence might consist as well in allowing a stranger to open the gates after they were closed as in the failure to close them in the first instance.
    
      2. Same.
    It could not be held, as matter of law, that permitting such opening by a stranger, and allowing the gates to remain open long enough for one to pass, was not negligence.
    3. Same.
    Although the further gate was closed, it was distant 143 feet, and it was for the jury to say whether the deceased might not have reasonably supposed that upon reaching the further gate he would find that open also.
    4. Same—Evidence—Ordinance limiting speed oe trains.
    The accident happened in 1888. By chap. 242 of Laws of 1889 it is provided that where a crossing is protected by gates, in a city of a population not exceeding 50,000, the common council cannot limit the speed of trains to less than thirty miles an hour. Plaintiff was allowed to read a city ordinance of 1883, which, in substance, provided that trains should not be backed over a crossing at a speed greater than two miles an hour. Held, no error. The accident happened before the law of 1889 was passed, and no proof was made as to the population of the city.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, at Schenectady circuit, and, also, from an order denying defendant’s motion to set aside the verdict upon the minutes at the trial.
    The action was prosecuted for alleged negligence of the defendant in the management of its railroad by reason of which plaintiff alleges that his intestate was struck by defendant’s cars while crossing the defendant’s railroad track on one of the streets in the city of Schenectady.
    The deceased was a son of the plaintiff and of about sixteen years of age, and at the time of his death was in plaintiff’s employ in the business of peddling and delivering milk in the city of Schenectady, with a team of horses attached to a covered wagon, open at the front with a seat located about the middle of the box, opposite which on either side was an opening in the cover of about two and one-half feet in width, with milk cans before and behind the seat.
    The defendant’s railroad track crosses Front street in the city of Schenectady at about right angles with the street and on a grade with the same, and at that crossing the street has six tracks crossing the street and occupying a space on the street of 143 feet.
    The street at that point is forty-five feet in width and on either side of the railroad at this point the defendant ^sometime prior to the accident had maintained gates, constructed and operated in the usual manner of such gates, with long arms of wood moving-vertically on axles in boxes on the side of the street, and so adjusted that a gate man stationed at one of these boxes, or axles, with the use of a crank, or cranks,without shifting his position, could lower the bars on either side of the railroad track to a horizontal position, and thus span the entire street at either side of the railroad, or by the use of the same cranks, or lever, elevate the bars, on either side or both sides of the railroad and thus leave the street unobstructed for the public travel.
    The gates could also be raised by lifting directly upon the bars; the defendant through its gateman and-its flagman had control of' these gates at the time of the accident, but the undisputed cviclence is that the gate through which the plaintiff’s intestate entered upon the track had been raised by a woman, who lifted the bar and passed through just before he drove through, and that the gates on the opposite side of the railroad tracks were closed when he drove in, and were not opened before the accident.
    The direction of the railroad at that point is north and south, and the deceased approached the crossing from the east side going in a westerly direction. About eighteen feet from the east gate, through which the deceased passed, is a track diverging from the line of the main track, and leading in a curved line to the freight house.
    From this freight track, to track designated as track No. 4, is a distance on the line of the street of fifty-three feet There are five tracks at this point nearly parallel, and distant seven feet from each other, each track being five and a half feet wide, and designated in their order from east to west, as No. 4-3—2-1, and a switch track.
    On No. 4, which was the most easterly of the main tracks, stood a train of twelve high box cars extending two feet north of the south building line of the street.
    On the occasion of the accident the deceased was on Front street driving westerly towards the crossing on a trot; as he approached the east gate it was raised, as the evidence shows, by a woman who was passing along the street; the west gate remained closed; as the deceased with his team passed under the gate upon the railroad track a train of six box cars backed from the south over track No. 3, colliding with the wagon in which the deceased was passing, and he was killed.
    There was a brakeman on the car that struck deceased, who gave alarm by swinging his hands and shouting, and the bell of the engine which was pushing the box cars was rung. On reaching track 3 deceased turned his horses, and one of them stumbled, causing slight delay.
    The plaintiff insists that the defendant was guilty of negligence in allowing the gate to be opened so/that the deceased could drive upon the track while a train was approaching, and also that the train was moving at a rate of speed that was prohibited by a city ordinance, and also in backing a train across the street without its being preceded by a flagman, and that the evidence of defendant’s negligence was sufficient to justify the jury in finding a verdict for the plaintiff, and that as the gate was raised the deceased had a right to assume that no train was passing; that the third track was hidden from view at the point where the deceased passed the gate by intervening freight cars; that he could not see the apjDroaching train, and was, therefore, guilty of no contributory negligence.
    On the part of the defendant it is insisted that the gate was raised through which the deceased passed, by a stranger, for whose acts the defendant is not responsible; that the opposite gate being-closed was a notice to the deceased that the track was not clear; that he could have seen the approaching train if he had looked; that he must have seen the train approaching after he passed the gate and in time to stop his team, but attempted to pass with a knowledge of the approach of the train, with the hope or expectation of passing before the train reached him, but was unexpectedly delayed by the stunibling of his team, and that his acts and omissions constituted negligence on his part, which contributed to the injury, for which the plaintiff should have been nonsuited on defendant’s motion.
    The defendant also insists that the judge erred in bis charge and in his rulings in the admission of evidence.
    The jury rendered a verdict for the plaintiff.
    
      S. W. Jackson, for app’lt; Edward D. Cutler (Alonzo P. Strong, of counsel), for resp’t.
   Mayham, J.

We think the evidence in this case fairly sented a question of fact for the jury as to whether the defendant was guilty of negligence in the management of the gate, or in running the train which produced the injury to the plaintiff’s intestate.

The defendant having constructed and maintained gates on either side of this railroad, crossing the street, and as the case shows, having charge of such gates, the public have a right to rely, with some degree of confidence, that they will so operate the same that the traveler upon the highway will be excluded from the railroad tracks when trains are approaching in dangerous proximity to the street, and while such traveler may not rashly or presumptively rely upon the condition of the gates, but ■must, to avoid the imputation of contributory negligence, make use of his judgment and senses to avoid danger, yet when he finds the gate open and drives upon the the track and is injured, it becomes the question of fact for the jury to determine, whether the railroad company was guilty of negligence in allowing the. gate to be opened by a stranger, and the traveler upon the highway thus put off his guard, or invited by the appearance, to enter and thus expose himself to danger.

Negligence in the management of the gates may consist as well in allowing a stranger to open them as in the negligent opening of them by the company’s agent. And I think it is for the jury to say whether, upon the evidence in this case, the defendant negligently permitted the gates, which were placed there as a warning and safeguard to the public, to be opened either by its own employe or a stranger, and remain open so as to allow a traveler to pass through. The duty of operating the gates in such a manner as to afford reasonable protection to a traveler upon the highway, who is reasonably careful himself, rests with the railroad company, and when the gate is open and the traveler passes through upon the track and is injured, "it is a question of fact for the jury to determine whether or not the act of allowing the gate to be open, whether opened by defendant or a stranger, is negligence on the part of the company.

It is quite true, as contended by the appellant, that: “ Unless there is something in the proof, taken as a whole, which, if believed by the jury, would establish a failure on the defendant’s. part to perform a legal duty, or to use reasonable care and prudence in what it did, the case should not be submitted to the jury.” Heaney v. Long Island R. R. Co., 112 N. Y, 126; 20 N. Y. State Rep., 296.

But I think it cannot be held, as a matter of law, that permitting the gate to be opened even by a stranger, and to remain open long enough for a traveler upon the highway to pass through, is not such an act or omission by the company as to justify its submission to the jury upon the question of the negligence of the defendant.

In Grippen v. N. Y. C. R. R. Co., 40 N. Y., 47, the court, in discussing the question of evidence of negligence to be submitted to the jury, says : “ Where the facts are themselves in dispute, or upon the proofs their wisdom or efficiency is doubtful, the jury must decide whether negligence was proved.”

The gate being under the charge, superintendence and management of the defendant, we think it was for the jury to say whether leaving it open in the manner indicated by the witness, was or was not negligence.

It is quite true as contended by the appellant that the burden is upon the plaintiff in this class of cases, to establish the negligence of the defendant which either directly, or proximately caused or contributed to the injury complained of, ana that the charge of negligence cannot be supported by mere conjecture, or surmise, but must be proved, either by direct evidence or by facts from which the inference of negligence can be legitimately drawn, Dobbins v. Brown, 119 N.Y., 193; 28 N.Y. State Rep., 957, and that this class of actions stand upon a different footing from that governing actions by passengers against carriers of passengers or owners of goods against common carriers in which cases a contractile relation exists, which is deemed broken by an injury or loss to the person, or owner of the goods carried. Nitro Glycerine Case, 15 Wall, U. S., 536. In this case, as we have seen, negligence must be proved by the plaintiff by evidence of negligent acts or omissions; in the other, proof of the injury usually established a prima facie case.

But the appellant insists that the trial judge shoula nave non-suited the plaintiff on the motion of the defendant, on the ground that the plaintiff’s intestate was guilty of contributory negligence in driving upon the railroad track while the opposite gate was closed, and in not looking to the right and left as he was required to do in going upon such dangerous ground as a railroad crossing, and insists that if he had looked he could have seen the approaching train in time to have avoided the collision.

Upon this question also the plaintiff has the affirmative, and must assume the burden of proving to the satisfaction of the jury, by evidence tending to establish that fact, that his intestate was guilty of no negligence which contributed to the injury, and the rule upon this subject is well stated in Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 N. Y., 202, as follows: “ The burden ^as upon the plaintiff of showing affirmatively, either by direct evidence or the drift of surrounding circumstances, that the deceased was himself without fault, and approached the crossing with prudence and care, and with senses alert to the possibility of approaching danger.

“ He must look and listen : and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing.”

Upon this branch of the case, we think it was proper for the jury to consider the fact that deceased found this gate open, and to consider that as an element bearing upon the question of his negligence, and the discussion of that question upon the other branch of the case applies with equal force here.

The jury might well consider whether, when deceased found the gate open, he might not prudently have regarded it as some degree of assurance that no train, while the gate was in that position, would pass across, or upon the limits of the public street

In Palmer v. The N. Y. Cent., etc., R. R. Co., 112 N. Y., 234; 20 N. Y. State Rep., 904, a case in some respects similar to this, the company had provided a gate, on either side of the track, to be shut when engines or trains were passing and opened at other times;

Plaintiff’s intestate finding the gate open attempted to cross and was struck by a locomotive and killed.

Danforth, Judge, in delivering the opinion of the court of appeals affirming the judgment of the general term sustaining a verdict for the plaintiff, uses this language:

“The defendant, for the better protection of life and to promote the safer and better management of its road, either of its own volition, or under the command of law (Laws of 1884, chap. 439, § 3), had erected gates across Walnut street, on either side of the track, and had stationed a person there to open or close such gates when an engine or train passed.
“ The duty of the company was imperative, and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous ; that none was passing.
“A closed gate was an obstruction preventing access to the road; •an open gate was equally positive in the implication to be derived from it, that the way was safé.” And he adds: “The open gate an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass.”

With this declaration of the law from the highest court, it would seem clearly proper to submit it as a question of fact to the jury, whether from all the evidence the deceased was chargeable with contributory negligence.

It is urged by the appellant that the brakeman on the rear car,, ■as the train was backed towards the street, was first to reach the street, saw deceased as he approached the track and signalled him to stop ; but the evidence shows, also, that there were intervening box cars, and while the person standing upon the approaching car •could see deceased and his wagon, yet there is no positive evidence that deceased, seated as he was in his covered carriage, could see any portion of the approaching train.

At least the question was involved in so much doubt upon that subject that we think it presented a proper one for the jury.

It is also urged by the appellant that the fact that the opposite gate was closed was notice to the deceased that the way was obstructed ; but when taken in connection with the fact that the street at this point was 143 feet wide, and that the gates although operated by the same gateman were moved by different cranks or levers, it was for the jury to say whether the deceased had not reasonable grounds for supposing that the opposite gate would be opened when reached by him.

On the whole we think the facts justified the submission of the question of contributory negligence-to the jury as one of fact.

The jury in-this case having found in favor of the plaintiff upon both the questions of defendant’s negligence and the plaintiff’s, want of contributory negligence upon evidence on which they might so find, the judgment upon their verdict must be sustained, unless some error in the admission or rejection of evidence, or in. charging the jury, was committed by the trial judge.

It is urged by the appellant that the ordinance of the common: council of the city of Schenectady prescribing rules and regulations for running cars across any of the streets in the city of Schenectady was improperly offered and received in evidence on the trial. Section 10 of tit 3 of ch. 385 of the Laws 1862, confers upon the common council of cities the power to regulate the speed of railroad cars upon railroads within their respective cities, and makes various rules in reference to the operations of railroads in the same

Under this power the common council of Schenectady, on the 12 th of January, 1883, adopted the following ordinance:

“It shall not be lawful for any railroad corporation, its agents,, servants or employes, or any person, or persons, in charge of a. train, caboose or cars, to cause the same to be drawn, kicked, or backed over or across any of the streets of the city of Schenectady within the compact part of the city, unless they shall cause a person of mature and suitable age to pass in advance of said train, or caboose, so moving and backing within the compact part of said city referred to, for the purpose of giving warning to persons of the ^approach of such cars, or caboose, and such cars when so. moving backwards shall not be moved or backed at a greater rate-of speed than two miles an hour.’’

The introduction of this ordinance was objected to on the ground that it was inconsistent with the provisions of chap. 242 of the Laws of 1889.

This provides that in cities of less than 50,000 population it. shall not be lawful for the common council to restrict the rate of speed of railroad cars to less than thirty miles an hour when gates are established, and persons furnished to attend the same.

It will be seen that the restriction in terms applies only to cities of 50,000 or upward, but there is no proof that Schenectady is a. city of less than 50,000 inhabitants, nor was the objection specifically put on the ground that its population was less than that number, and we fail to see that the introduction of this ordinance was an error for which the judgment should be reversed; besides, this act was not in force when the injury was done.

Several exceptions were taken to the charge of the learned judge and to his refusals to charge in the case, but we have carefully examined them and the authorities cited by the learned counsel, and find in them no grounds of error for which this judgment should be reversed.

The judgment should be affirmed, with costs.

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