
    WILBUR v. DELAWARE, L. & W. R. CO.
    (Supreme Court, General Term, Fourth Department.
    February, 1895.)
    1. Railroad Companies—Accidents at Crossing—Contributory Negligence.
    As plaintiff’s intestate approached the crossing, at the time of the accident, he stopped about 25 feet distant to wait for the passing of a freight train. After the train passed he drove on the track, and was killed by another train, running at the rate of more than 60 miles an hour. There was evidence that decedent, before going on the track, looked to see if another train was approaching; but it did not appear how far the freight train had passed, or how much the view was obstructed by the smoke from it. There was no flagman at the crossing, though decedent had seen one there a short time before. Held, that the question of contributory negligence was properly submitted to the jury.
    2. Same—Absence of Flagman.
    Where there was no flagman at the crossing at the time of the accident, the testimony of a witness for plaintiff that he drove over the crossing a short time before with plaintiff’s intestate, .and that a flagman was then stationed at the crossing, is admissible as bearing on the question of contributory negligence.
    Appeal from circuit court, Chemung county.
    Action by Katherine J. Wilbur, as administratrix of Judd L. Wilbur, against the Delaware, Lackawanna & Western Railroad Company to recover damages for the death of plaintiff’s intestate, caused by the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    John G. Milburn and Robert T. Turner, for appellant.
    Frederick Collin, for respondent.
   MERWIN, J.

The railroad of the defendant, at or near its station at Lowmanville, in the county of Chemung, crosses at nearly right angles a highway which runs nearly north and south. On the 8th day of April, 1893, Mr. Wilbur, the plaintiff’s intestate, in company with one Gardner, was passing northerly along this highway in a one-horse covered buggy. Mr. Wilbur sat on the right-hand or easterly side, and was driving. The day was cloudy and rainy, and the top of the buggy was up and the side curtains down. It was about 5 o’clock in the afternoon. The road of the defendant there has two tracks, the space between the two being about 8 feet. As Wilbur approached the crossing, and about 25 feet from it, he stopped and waited for the passage eastwardly of a long freight train on the south, or east-bound, track. After this train passed by, he drove on, and as he was crossing the north, or westbound, track, he was struck by a train going west on the north track, and both he and Gardner were killed. The train was a fast one, going, according to some of the evidence, at the rate of over 60 miles an hour, and was behind time. It was known as “No. 3,” and called the “Flyer.” The plaintiff gave evidence tending to show that no signals were given of the approach of the train, no whistle blown, or bell rung. Evidence to the contrary was given on the part of the defendant. An issue in this respect was presented for the jury to decide, and the verdict in this respect should not be disturbed. Whether the defendant was negligent was a question of fact.

The question of contributory negligence is strongly pressed. There is evidence that as Mr. Wilbur started to drive across, and before he reached the first track, he looked out eastwardly, as if to see whether a train was approaching on the other track. At what particular point he was when he looked cannot with certainty be fixed. Two witnesses speak of the looking out, but whether they refer to the same act or different acts was for the jury to say. So it was uncertain as to how far the rear of the freight train had passed beyond the crossing at the time the looking out occurred,' and hence uncertain how far eastward the party looking could see an approaching train. There was a curve in the eastward tracks, which, according to some of the evidence, prevented seeing a train in that direction more than about 60 rods. There was also the freight train, and its engine, as it passed along, emitted a good deal of smoke, that was going over the tops of the cars, and might interfere somewhat with seeing an approaching train. There was no flagman at the crossing, although the deceased had seen one there a short time before. The train was coming very rapidly, as the jury may have found, and without any signals heard by the deceased. The question of contributory negligence was, we think, for the jury to decide. Greany v. Railroad Co., 101 N. Y. 419, 5 N. E. 425; McNamara v. Railroad Co., 136 N. Y. 650, 32 N. E. 765; Weber v. Railroad Co., 58 N. Y. 451; Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. 145; Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. 128; Borst v. Railroad Co., 4 Hun, 346; Miller v. Railroad Co., 82 Hun, 164, 31 N. Y. Supp. 317. The deceased was bound to make all reasonable effort to see that a careful, prudent man would make under like circumstances. He was not bound to provide against any certain result. Shaw v. Jewett, 86 N. Y. 617. In the Greany Case, 101 N. Y. 427, 5 N. E. 425, it is said of an occurrence similar in some respects to the present that whether the party “looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law; and whether, upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” In the McNamara Case it was said (page 653, 136 N. Y., and page 765, 32 N. E.): “It was possible for the jury to And upon the evidence that she [the plaintiff] used reasonable care and caution, and this made the question one of fact, which has been determined by the verdict in favor of the plaintiff.” In this case, whether the deceased, in the exercise of reasonable care, under the circumstances, should have seen the train in time to have avoided the accident, was a question of fact for the jury.

Gpon the question of contributory negligence, it is claimed by the defendant that improper evidence was received. It was shown by plaintiff without objection that at the time of the accident there was no flagman at the crossing. It was then shown by a witness named Pierce that two or three weeks before the accident he had driven over this crossing with Mr. Wilbur, about the time this train No. 3 pas'sed through west. The question was then asked, “Was there at that time a flagman at that crossing?” This was objected to by the defendant as immaterial and inadmissible, and the court held it was admissible on the question of contributory negligence, and overruled the objection, and defendant excepted, and witness testified that there, within the view of the witness and of Wilbur, there was a flagman at that crossing for that train. In McNamara v. Railroad Co., supra, a flagman stationed at a crossing, whose duty it was to warn persons approaching of danger, was absent from his post at the time of the accident, and it was, in effect, held that this was a circumstance to be considered on the question of the contributory negligence of one accustomed to pass at that point, the court saying that the deceased “had the right to rely upon the presence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train by ringing the bell and sounding the whistle.” The defendant claims that the case of McGrath v. Railroad Co., 59 N. Y. 468, is in point against the relevancy of the evidence. In that case, as said in the opinion, at page 472, “there is no ground for imputing any negligence to the plaintiff upon the evidence in the case, unless he omitted to look for the approaching train before he crossed the railway, or undertook to cross the track in advance of the train after seeing it.” It was held that the absence of the flagman who was accustomed to be there did not excuse the traveler from the charge of negligence in omitting the use of his senses. This case does not seem to necessarily hold,

and in view of the McNamara Case it should not be deemed to hold, that when the traveler does look and listen, and the question is whether he looks at the proper place or at the proper time, the circumstance of the absence of the flagman may not be considered with other circumstances. In Dolan v. Canal Co., 71 N. Y. 285, the absence of the flagman is stated to be one of the circumstances to be considered on the question of the negligence of the plaintiff. In Sullivan v. Railroad Co., 44 Hun, 304, 311, it was held competent to prove, on the question of contributory negligence, that the defendant failed to observe its rule as to the ringing of the bells of locomotives in its yard. But it is argued that there is no proof that it was customary for the defendant to have a flagman at that crossing. There was no proof on that subject either way, except as it may be inferred from the evidence of the witness Pierce, above referred to. The evidence was not objected to on that ground. The material question was, what knowledge did the deceased have of the situation, as he approached on the day of the accident, that would properly bear on the amount of care he should exercise? He had been there shortly before at the time this train passed, and a flagman was there. It cannot be said, as in the case of Whalen v. Railroad Co., 58 Hun, 431, 433, 12 N. Y. Supp. 527, cited by counsel for the defendant, that the deceased knew it was not the habit of the company to have a flagman there. He did not live in that vicinity, and we cannot assume that he would know the custom of the company on the subject. What he had in fact seen there recently before was, we think, competent, and its weight was for the jury. The counsel for the defendant claims that the court, in its charge, permitted the jury to give undue effect to the circumstance of the absence of the flagman. The question as finally left to the jury on that subject was “whether, taking the circumstances as they there existed, including this fact, he acted as an ordinarily prudent man in proceeding to cross as he did.” This, we think, correctly presented the question, and, in view of the prior discussions between court and counsel, it is not apparent that the jury would be likely to be misled by any prior statement of the question in a form that perhaps was not exactly correct. We find no sufficient ground for reversal.

Judgment and order affirmed, with costs. All concur.  