
    (69 Hun, 476.)
    BOND v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Railroads—Accidents at Crossings—Contributory Negligence.
    A teamster, on approaching a railroad crossing, found the gates down. After a train had passed, the gate tender raised the gates, at the same time signaling him to cross. The view was obstructed, and thé grade to the crossing descending. Held, that the teamster was not necessarily negligent in proceeding on a trot, or in failing to act with the best judgment on suddenly finding himself in great danger from an approaching train.
    Appeal from circuit court, Montgomery county.
    Action by Ephraim Bond against the New York Central & Hud- ° son River Railroad Company for personal injuries. Plaintiff was traveling on foot along a street towards a certain crossing of defendant, while one William Struing was traveling in a wagon. One of defendant’s trains collided with the wagon, throwing the wagon box over and upon plaintiff, causing his injuries. The court directed a verdict for defendant. Plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    R. J. Sanson, for appellant.
    C. D. Prescott, for respondent.
   PUTNAM, J.

The questions involved in this case are so well settled, and have been so often discussed, that an opinion is unnecessary. The trial, court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. Rehberg v. Mayor, etc., 91 N. Y. 141. There was testimony given tending to show negligence on the part of the defendant in the management of its gates, which, if submitted to the jury, would have sustained a verdict for the plaintiff. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256; Phillips v. Railroad Co., (Sup.) 6 N. Y. Supp. 621. If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one of law for the court. A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256. It appears that when Struing approached the crossing the gates were down, and he stopped his team. A train passed, and the gate tender raised the gates, at the same time signaling Struing to cross. Struing’s view was obstructed to the west by buildings and by a train standing on the track. Being invited by the open gate and by the gate tender to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching train so nearly upon him, and was called to act suddenly in the fact of great danger, did not act with the best judgment in whipping up his horses, can he be held, as a matter of law, negligent. Twomley v. Railroad Co., 69 N. Y. 158. It is only in rather exceptional cases that the question of contributory negligence can be taken from the jury. Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. Rep. 145. Judgment should be reversed, and a new trial granted, costs to abide the event. All concur.  