
    Calvin G. Branch, Appellant, v. New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — a driver of a, covered milk wagon struck by a train at a crossing, the view of which was obstructed — the question of contributory negligence is for the jury.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while attempting to pass over a crossing maintained by the defendant, a railroad company, it appeared that the plaintiff was driving slowly in a covered milk wagon, the doors and windows of which were open, and that he was watching for trains; but that, owing to obstructions, he could not, until he was within 30 feet from the first track, see a train approaching from the west; that at that point he could see about 100 feet to the west, and that, as he advanced, his range of vision extended until, at the track, he could see nearly half a mile to the west; that he had almost cleared the track when his wagon was struck by an east-bound train, which was moving at a speed of about 35 miles an hour and had given no signal of its approach.
    
      Held, that, under the circumstances, the question whether the plaintiff was guilty of contributory negligence was one of fact.for the jury.
    Appeal by the plaintiff, Calvin Gr. Branch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Niagara on the 28th day of September, .1898, upon a dismissal of the complaint, by direction of the court, after a trial at the Niagara Trial Term.
    The plaintiff was hit by one of defendant’s passenger trains at the crossing in Lincoln avenue in the city of North Tonawanda, and sustained injuries, which he makes the basis of his cause of action. Lincoln avenue, in the city of North Tonawanda, runs in a northerly direction and is crossed by defendant’s tracks at an angle of fifty degrees as they extend in a northeasterly and southwesterly direction over the street crossing. There are dwelling houses on all the lots on both sides of Lincoln avenue south of defendant’s right of way. The lot on the westerly side of the street, adjacent to defendant’s land, is triangular in form and has a dwelling house and three outbuildings upon it. The street and the railroad tracks are lower than the surrounding land, as the earth lias been excavated in their construction. The embankment south of the tracks on defendant’s land is about seven feet higher than the center of Lincoln avenue, at its connection with the street, and continues substantially at this elevation to Thompson street, seven hundred, and seventy-two feet southwesterly from the point of intersection of Lincoln avenue with defendant’s right of way. There is a wire fence on the top of this embankment, and weeds are growing upon it. At the time of the accident there was a row of willow trees on defendant’s right of way, south of its tracks, and extending southwesterly to Thompson street. There was a ditch about six feet déep between the embankment and defendant’s tracks, and these trees started from the bottom of this ditch. The first tree was about twenty feet from the westerly line of Lincoln avenue, and inclined a trifle toward the defendant’s tracks. These trees were of bushy growth, of about twenty to twenty-five feet in height, and grew in clumps or separate branches from the roots, and the ends of the limbs extended within eight to ten feet of the nearest of defendant’s tracks. They were not in leaf at the time of the infliction of the injuries upon the plaintiff, but their limbs were close together. The top of the embankment extended above defendant’s tracks about the same distance as above the street, so that , about one-half of an ordinary passenger car would be above the top of the embankment in passing through this cut. The view of a train of cars approaching Lincoln avenue crossing from the west was cut off from a traveler on that avenue going north, in addition to the obstructions detailed, by the dwelling houses and outbuildings, which were quite thickly placed on the west side of the street. There were open spaces between the houses, but they afforded very little opportunity to see a coming train, as the embankment, trees, outbuildings and catering course of defendant’s right of way all tended to interfere with the view. From a point about seventy to eighty feet from the track the grade of the street descends slightly toward the center.
    
      Henry E. Warner and Richard Crowley, for the appellant.
    
      Charles A. Pooley, for the respondent.
   Spring, J.:

On the 3d day of May, 1897, plaintiff came in contact with an easterly-bound passenger train, at the Lincoln avenue crossing, and sustained injuries for which he is now seeking to recover. It was about eleven-thirty in the forenoon, and plaintiff was peddling milk, riding in a closed conveyance. The milk wagon wras of common construction, such as are used in cities, with windows on the side open, but small. The plaintiff had been engaged in peddling milk for seven or eight days, and passed over this crossing each day during that time. He testified, however, that he was unacquainted with the time of this train, which was a regular train and on time. His version of the transaction is as follows: “ On that day I came down Thompson street and turned on Lincoln avenue. I stopped to the second house and left some milk. I got out, and then got in my wagon and started down, down three or four houses, and the pail was not out, and I kept on going down on a slow shack until I got near the railroad, and I stopped the horse on to a walk, and I looked for the cars to see if I could see them coming, or the smoke or anything. I couldn’t see anything. The horse kept going along. I stopped at the top of the grade and I couldn’t see anything until I got down; the horse got down with his head about to the first rail of the track before I could see up the railroad track any at all. There was a door with a window in it on each side of the milk wagon, but both doors were open. I could see east and west as well as I can here. I looked and listened, and I couldn’t hear no train or whistle or bell or any noise. I let the horse keep on walking. I looked to the west and I didn’t see or hear anything, and I looked to the east and I didn’t see anything. The horse kept walking along, and the horse got across the track and the fore wheels got over the north rail, and I leaned out of the east door and hit the horse, and that is the last thing I knew anything at all about it. X didn’t see the train nor hear it. I looked to the west first to see if there were any cars backing down, or anything coming.”

Later in his examination he testified he looked between the houses for an approaching train, but it is ¡probable that during that time the train was not in sight. He also said that he “ kept looking all the way then to see if I could see anything or hear anything. I was listening and looking and I couldn’t see anything, and the horse kept walking right along.”

Until the plaintiff was within about twenty feet in a direct line from the first track he could not see a train approaching from the west. At that distance he could see about one hundred feet, and the nearer he approached the track the more was his range of vision extended, until, at the track, he could see nearly half a mile in a westerly direction.

The proof shows that the speed of the train was about twenty-five miles an hour, and that no signals were given as it approached the crossing. For the purpose of this appeal, therefore, the negligence of the defendant is established.

The only question to be considered is as to plaintiff’s freedom from fault. Did he exercise the prudence and caution required of him in approaching a place of known danger? The space to be traversed was about thirty feet. He was in a wagon that, to some extent at least, interfered with his hearing, and he testified that he looked both ways several times and listened for a train, but neither saw nor heard one. That fact may be regarded as established, as his credibility was for the jury. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)

The short distance he had to traverse; the rapidity with which the train was moving; the shacking gait of his horse; the noise made by his wagon and by his own movements; the fact that he was shut up in his milk wagon; that he had to lean forward to look up and down the tracks, are circumstances which render his statement sufficiently probable to permit a jury to pass upon his conduct. (Petrie v. N. Y. C. & H. R. R. R. Co., 66 Hun, 282 ; Greany v. L. I. R. R. Co., 101 N. Y. 419, 427; Haupt v. N. Y. C. & H. R. R. R. Co., 20 Misc. Rep. 291; Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402.) As was said in the case last cited (at p. 406): “ But whatever explanation may be adopted as regards the failure of the plaintiff’s intestate to avail herself of the opportunity which was afforded by the conditions surrounding her to observe the approach of the train which struck her, the fact remains uncontradicted by any oral proof that the girls did look in both directions before stepping upon the track; and the rule seems now to be pretty well settled in this State that where this is done a question of fact is generally created, and that a recovery is not necessarily impossible, because it can be shown that an approaching train might and ought to have been discovered by one who was upon the lookout for it.”

Had the plaintiff looked toward the train while twenty feet back from the track, and even nearer than that, it would not have been within his view ; he did not occupy more than five seconds, possibly, in going this distance, while the train passed over two hundred feet, and it did not, therefore, come within the range of his sight until after he had passed the obstructions to his view, made by the trees and embankment. His wagon was nearly over the track when it collided with the train; he must, therefore, have been several feet beyond the north rail, in the front end of his covered box. Just the time occupied in passing over this distance cannot be ascertained. He was watching for a train ; he had milk cans aboard, and he probably lessened his speed as he crossed over the rails We cannot, as matter of" law, impute negligence to him.

There is no specific point at which a traveler approaching a railroad crossing must look and listen. The duty is always insistent upon him to be alert and vigilant, and what constitutes the requisite caution is always dependent upon circumstances. The vigilance exacted is in a measure mitigated by the obvious failure of those operating the train to give the customary warning of its approach to the crossing. The care required is a relative term and is necessarily interwoven with the question of the exercise of care and the performance of duty by the trainmen. Their omission does not absolve him from care. A cautious man approaching a railroad crossing is watchful for the customary signals, and the fact he does not hear them may well be said to allay involuntarily his watchfulness and his apprehension that a train may be approaching.

All these circumstances are factors to be taken into consideration in determining the question, whether the plaintiff has fulfilled the burden imposed upon him of establishing affirmatively that he exercised due care and caution in approaching this crossing. (Chisholm v. State, 141 N. Y. 246 ; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199; Crosby v. N. Y. C. & H. R. R. R. Co., 88 Hun, 196 ; Lortz v. N. Y. C. & H. R. R. R. Co., 7 App. Div. 515.)

The counsel for the defendant relies upon Belch v. N. Y. C. & H. R. R. R. Co. (90 Hun, 477) and Nash v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 715). In the former case the plaintiff lost a wheel to his carriage while crossing the defendant’s tracks. He alighted from the wagon, and was engaged for some time groping about for the wheel, in adjusting it and in getting the rig over the tracks ; and while doing so he was hit by a train and injured. The plaintiff was familiar with the crossing; he knew it was time for a regular train; the view of its approach was unobscured for over one-half a mile.

In the latter case the plaintiff was passing over a private crossing leading to his own lands ; he was in a place entirely known to him, and where no warning signals of an approaching train were required. The view within twenty-five feet of the track was plain and distinct for half a mile in the direction of the train which collided with him.

These cases are not akin to the present one.

The judgment is reversed and a new trial ordered, with costs.

All concur, McLennan, J., not sitting.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  