
    May A. Flanagan, as Administratrix, etc., of Peter Flanagan, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, as Lessee of the Rome, Watertown and Ogdensburg Railroad Company, Appellant.
    
      Negligence — injury from a collision at a grade crossing — negligence of a driver, when not imputed to his companion — §5,000 verdict, when not excessive — the credibility of witnesses is for the jury—proof of the speed of a train.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate who, while riding in a buggy at the invitation of one Horan, was killed in a collision with one of the defendant’s north-bound trains at a grade crossing in the village of Fulton, at about eight o’clock on a dark August evening, while the electric street lights were not burning, it appeared that, as they approached the crossing, the. occupants of the buggy could not see a train approaching from the south until they reached a point about thirty feet westerly from the crossing,- at which point they could see the engine for a distance of one hundred and fifty-nine feet; that at twenty-five feet from the crossing the engine of an approaching train could be seen for a distance of twelve hundred and seventy -five feet. It appeared that the intestate and his companion looked both ways when they were about twenty-five or thirty feet from the crossing, and that when they again looked south the train was upon them.
    There was evidence tending to show that the train was traveling at a speed of twenty-five miles an hour, and it was conceded that the locomotive whistle was not blown and that the automatic signal at the crossing was out of order. The evidence was conflicting as to whether the bell on the engine was rung or not. It further appeared that a large crowd of people had assembled at the crossing and that there was a great deal of noise and commotion there.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That the questions, whether the defendant was negligent and whether the intestate exercised that degree of care and caution that a prudent man would have exercised under similar circumstances, were properly submitted to the jury;
    That the negligence of the intestate’s companion, who was driving, could not be imputed to him, but that the mere fact that the intestate had no control over the horse did not relieve him from the duty of looking and listening for himself and doing all that a prudent man should do under similar circumstances;
    That, as it appeared that the deceased was forty eight years of age at the time of his . death; that he had accumulated §5,000, and was earning from §1,000 to $4,000 a year, and that his family consisted of a wife who had' since died and an unmarried daughter, twenty-one years of age, a verdict of $5,000 should not he set aside as excessive;
    That the credibility of the plaintiff’s witnesses presented a. question for the jury and not for the court;
    That it was competent to prove the speed of the train by the the testimony of persons of ordinary experience.
    McLennan and Williams, JJ., dissented.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, as lessee of the Rome, Watertown and Ogdensburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the lltli day of May, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Henry Purcell, for the appellant.
    
      Thomas Hogan, for the respondent.
   Davy, J.:

This action was brought to recover damages for the alleged negligence of the defendant in causing the death of plaintiff’s intestate, who was killed at a grade crossing in the village of Fulton, Oswego County, New York, about eight o’clock in the evening of August 19, 1900.

The original plaintiff was Bridget Flanagan, as administratrix, etc., who was the widow of the deceased, but she having died since the entry of judgment, the present plaintiff, a daughter of the deceased, has been substituted in her place.

. The railroad tracks run north and south through Seneca street in said, village, and the highway crossing, upon which the deceased was killed, runs east and west.

It- appears from the testimony that upon the afternoon of the day that the intestate was killed, which was Sunday, he left his home with one James Horan, with a horse and top buggy, driven by the latter. They reached Fulton about six o’clock, stopped at a hotel, and remained there until a quarter after eight o’clock that evening. The road that they took in returning was through Cayuga street, which crosses the tracks of the New York, Ontario and Western railroad at right angles. As they approached the crossing the view of the deceased and his companion was obstructed by a block of buildings on the southerly side of Cayuga street, so that an approaching train could not be seen until they reached a point about thirty feet westerly from the center of the crossing, where the engine could be seen at about one hundred and fifty-nine feet from the same center, and when at twenty-five feet from the crossing, it could be seen, if they looked, at a distance of twelve hundred and seventy-five feet.

It appears that at the time of the accident the night was dark and the electric lights were not burning on the street; that there was a great deal of commotion at the crossing, and a large crowd of people had assembled at the depot and crossing; that there was noise from the pavements made by horses and wagons, and the Salvation Army band was nearby, playing and singing. The automatic gong or signal, which rung when trains approached this crossing, was not in working order and did not sound an alarm upon the occasion when this accident occurred.

It also appears from the testimony that the schedule time for making the distance between the two stations was but three minutes, which included starts and stops, and that the train went some four hundred feet after the air brakes were applied. The engineer testified that' a train going five miles an hour could be stopped within one hundred feet. The baggageman testified that the train stopped so suddenly that it tipped him over. All of this testimony indicates that the train was running at a high rate of speed.

It is urged on behalf of the defendant that- plaintiff should have been nonsuited on account of the intestate’s own carelessness, for the reason that the place where he looked both ways was about twenty-five or thirty feet from the tracks, and at that point his view of the approaching train was obstructed by the buildings on the southwest corner of Cayuga street, and that if he had looked again to the south before reaching the tracks, he would have seen the train.

• It appears that the intestate and his companion did look both ways as they approached the tracks. They looked first to the south and then to the north, and when they again looked south, the train was upon them. ' '

It cannot be held as a matter of law that it was the duty of the deceased to have been more vigilant in looking to the south. The noise at the crossing may have attracted his attention for a few seconds. The silence of the automatic signal was an implied invitation to the deceased and his companion to cross the tracks. They had a right to consider it as safe to cross as if a gate had been opened or a flagman had signaled them to cross over. It may not have been the defendant’s duty to repair the signal, but when defendant discovered that it was not in repair and that it did not warn, those who had occasion to cross the tracks, that -a train was approaching, it became defendant’s duty to exercise greater care and caution in running its trains over the crossing.

When the surroundings render a crossing dangerous to travelers on the highway on account of obstructions to the view, or the failure of an automatic signal to work, or the removal of a flagman or' gatetender, it' is the duty of the railroad company to take precautions commensurate to the danger, and it is for the jury to determine whether or not the absence of any particular precaution is negligence. (Glushing v. Sharp, 90 N. Y. 676.)

The plaintiff contends that this train was run at an unusual and dangerous rate of speed. There is no evidence that the municipal authorities had fixed the speed at' which trains might run through the village so that it was a question of fact whether, under the circumstances, the actual rate of speed that the train was running was excessive' or dangerous, and that would to some extent depend upon whether there was anything to obstruct the view of those about to cross the tracks, and whether proper safeguards had been adopted by the railroad company to prevent accidents. The employees of the defendant and other witnesses testified that the speed of the train did not exceed eight miles an hour. On the other hand, a number of the plaintiff’s witnesses, who were standing at the crossing and at the depot, testified that when the train reached the crossing it was running at twenty or twenty-five miles an hour. There was such a conflict of testimony upon that point that it would have been error for the trial judge to have taken that question from the jury, even if that were the only act of negligence charged against the defendant.

It was conceded upon the trial that when the train approached the crossing neither the steam whistle was blown nor the automatic signal sounded. Signals of some kind are usually necessary when trains are run. at a high rate of speed over crossings, especially through cities and villages.

The rights of the public and the railroad company as to the use of street crossings at the point of intersection are mutual and reciprocal, and both the company and those using the highway must exercise reasonable care and caution to avoid a collision. While a railroad train from its force and momentum has the preference in crossing first, yet those in charge of it are required to give reasonable and timely warning so that a person about to cross with a horse and buggy may stop and allow the train to pass.

A number of plaintiff’s witnesses, who were standing near the station and the crossing, testified that they observed the .train as it approached the crossing, and that. the bell on the. engine did not ring. Others testified that they did not hear it ring. Some of the defendant’s employees swore that the bell was. rung and two or three other witnesses who stood near the crossing swore that it was rung; so that upon this point there was a conflict of testimony.

It was held in Henavie v. N. Y. C. & H. R. R. R. Co. (166 N. Y. 284) that where a witness is shown to have been in a position to hear, and testifies that he observed the engine, but did not hear the bell ring, it furnishes some evidence that the bell was not ringing, and if he is positive that the bell was not rung, it furnishes strong evidence that the bell was not ringing. The court said: “ A railroad company which runs a locomotive, rapidly, in the night time, upon a public street in a populous city, crossing other streets .at grade, with no gate or flagman to protect the public and without taking any precaution to warn travelers by bell, whistle or otherwise, except by means of its headlight, may properly be found guilty of neglecting its duty to operate its cars with the care and caution required by the circumstances.”

The conflict of evidence upon the question of ringing the bell and upon the other disputed questions of fact in the case made them proper questions for the consideration of the jury,, in determining whether or not the defendant was negligent, and whether the deceased exercised that degree of care and caution that a prudent man would have exercised under similar circumstances.

The court could not have held as a matter of law that the testimony of plaintiff’s witnesses was false; it was for the jury and not the court to determine that question. (Williams v. Del., Lack. & West. R. R. Co., 15.5 N. Y. 158.)

The. negligence, if any, of the driver, who was the owner of the horse and carriage, could not be imputed to the deceased, who was not responsible for the acts of the driver, over whom he had no control, The deceased accepted an invitation to ride in the buggy with him, but the mere fact that he had.no control over the horse did not relieve him from the duty of looking and listening for himself, and doing all that a careful and prudent man should do under similar circumstances.

The plaintiff’s intestate was forty-eight years old at the time of his death. His family consisted of.his wife, who was forty-eight years of age, and has since died, and his daughter, twenty-one years of age and unmarried.

• We think the damages awarded were not excessive. The plaintiff’s intestate had accumulated some $5,000 and he was earning from $1,000 to $4,-000 a year. These facts constitute-such a reasonable expectation of a greater pecuniary benefit to the next of kin, if the deceased had lived, than the amount recovered that we do not feel justified in reducing the amount of the judgment.

No valid exceptions were taken upon the trial. It was competent to prove the raté of speed at which the train was running by .the testimony of persons of ordinary experience. This question was not one that could.be answered only by experts. (Salter v. Utica & Black River Railroad Company, 59 N. Y. 632.)

The judgment and order appealed from should be affirmed, with costs to the respondent.

Judgment and order affirmed, with costs.

Spring and Hiscook, JJ., concur ; McLennan and Williams, JJ. dissented.

Judgment and order affirmed, with costs.'  