
    LOCKWOOD v. POUGHKEEPSIE & E. RY. CO.
    (28 App. Div. 589.)
    (Supreme Court, Appellate Division, Second Department.
    April 26, 1898.)
    Railroads—Accident at Crossing—Contributory Negligence.
    In accident cases it is a general rule that care commensurate with the danger must he shown to have heen exercised, and it Is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has heen exercised. And while the courts have held that a person in approaching a railroad crossing is negligent, as a matter of law, if he fails to employ his senses of hearing and seeing, they cannot go into further details of necessary caution without usurping the province of the jury.
    Appeal from trial term, Dutchess county.
    Action by Frank Lockwood against the Poughkeepsie & Eastern Railway Company. Judgment for plaintiff. From an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ.
    
      Frank B. Lown, for appellant.
    Carroll Whitaker (John J. Linson, on the brief), for respondent.
   WOODWARD, J.

The plaintiff in this action was employed as a motorman on the Poughkeepsie & Wappingers Falls Electric Railway Company, whose line of railroad crossed the tracks of the defendant at grade, nearly at right angles, at a point near a building known as “Reynold’s Elevator,” on North street, in the city of Poughkeepsie. While engaged as such motorman on the 5th day of March, 1897, the car being operated by the plaintiff was struck by a car connected with an engine being operated by the servants and employés of the defendant, and the plaintiff was seriously injured in the collision. The case came on for trial at the Dutchess county trial term of this court, and resulted in a judgment for the plaintiff in the sum of $1,000. From this judgment, and the order denying the motion for a new trial, the defendant appeals to this court. While it seems to us clear that a person in the position of this plaintiff was peculiarly obligated to use the utmost degree of care, we are unable to see our way clear to disturb the finding of the jury, or to grant a new trial. As was said by Church, C. J., in the case of Dolan v. Canal Co., 71 N. Y. 285:

“There may be cases where a higher degree of vigilance might be regarded as proper, but those are exceptional cases, which must be left to the jury upon the facts. It is a general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised. Courts have held that a person, in approaching a railroad crossing, must employ his' senses of hearing and seeing, to avoid danger, and, if not done, he is negligent, as matter of law. Beyond this, courts cannot go, without usurping the province of the jury to determine questions of fact. The learned counsel argued that it was the duty of the plaintiff, under the circumstances presented, to have stopped his horses, and gone forward, to see if a train was approaching. Concede that common prudence would have required this; how is it possible to make it a question of law? It involves the consideration of all the surrounding circumstances, the extent of the obstructions, the time of day or evening, the extent of the light afforded by the street lamps, the frequency and usual rapidity of the trains at that point, the absence of the flagman, the time it would take to cross the track; involving the nature and character of the establishment used by plaintiff, and the proper inferences to be drawn from all these facts. How can the court say, as a legal conclusion, that the danger was so imminent that the unusual measures suggested were necessary to avert it, or that the omission to employ them was legal negligence? If a person does not look to see if a train is approaching, when looking would discover it, the law will be applied to the fact. In such a case there is nothing for the jury to determine, no inferences to be drawn, no judgment to be exercised. The fact being established, it is the duty of the court to declare its legal significance. But whether exceptional circumstances are such, in a given case, as to require additional and unusual precautions, and, if so, what precautions, is widely different, and necessarily calls for inferences, and the exercise of judgment, as to which impartial men might differ, and hence must be determined by the jury.”

The reasoning of the learned court in this case seems to us to preclude the contention of the defendant, and we see no way in which it may be relieved from the judgment rendered against it at the trial term.

The judgment and order appealed from are affirmed, with costs. All concur.  