
    Thomas McPeak, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1895.)
    
    1. Negligence—Contributory.
    The fact that a person, under some circumstances, could observe an approaching engine the distance mentioned by the testimony, is not sufficient to require the court to rule, as matter of law, that the plaintiff was guilty of contributory negligence.
    3. Same.
    The evidence, in this case, was held to have required the questions of negligence and contributory negligence to be submitted to the jury.
    Appeal from a judgment entered on a decision granting a non-suit, and from an order denying a motion for a new trial.
    
      
      W. A. Poucher and William Tiffany, for app’lt; D. G. Griffin, for resp’t.
   Hardin, P. J.

Inasmuch as a nonsuit was granted, the appellant is entitled to have all of the evidence construed in a manner-most favorable to his contention, as well as to have the benefit of the inferences which could legitimately be drawn from such evidence. Harris v. Perry, 89 N. Y. 308 ; Sherry v. N. Y. C. & H. R. Railroad Co., 104 id. 656; 5 St. Rep. 374; Morrison v. Met. T. & Telegraph Co., 52 id. 601. The defendant’s track, where the accident occurred, crosses Fourth street, and passes along Schuyler street. On the occasion of the accident one of defendant’s freight trains was stalled in its approach to Fourth street, and while crossing it, about nine fifty o’clock p. m. The track was wet, and as the train approached Fourth street it was passing around a curve, and there was some difficulty found in getting the use of the contrivance for depositing sand upon the track to prevent the wheels from slipping. A great noise was made by the-engine that was attempting to get the freight train cm motion. Holman, the engineer on the freight train that got stalled, said :

“We stopped there about nine-fifty on account of a liad rail. We didn’t have a very high pressure of steam. The engine was slipping bad. We stopped about four minutes, and put on the-blower, and began to take in slack,—three or four minutes. Took the slack of the train, and pulled them a little ways, and stalled again. Took slack again, and started the train, and pulled them out very slowly. The second time we took slack we stopped just long enough to get slack,—about two or three minutes. Our engine was supplied with sand. I was using it. It was on a-curve, and she wasn’t getting sand the way she ought to. Only on one side. Sometimes the sand pipe gets off the rails, and it-don’t work just right. * * * The noise was the sudden exhaust. Quite a noise, sudden, following each other; short exhaust. * * * It was a continuous noise,—a kind of blowing-noise out of the stack. * * * The cause of this stalling was an insufficiency of steam and slippery rails and the curve combined. These three causes caused us to get stuck there.”

Defendant’s witness Buskey, who was the' head brakeman on the freight train that got stalled, says :

“The engine was exhausting steam when we tried, and when we didn’t try they had the blower on, and had a kind of humming noise through the stack of the engine. The blower makes that humming noise. * * * That is the worst noise—the most, difficult to hear when you are near it—of any noise the engine makes. I guess it is the most difficult to hear when you are near the noise; more difficult than any other noise which the engine makes. * * * I call that noise a kind of humming noise. It is when you are trying to get steam. It is when the blower is on. It is a continuous humming noise ; no cessation at all. Whenever we are not trying to go ahead, that noise existed. And when we were trying to go ahead we were exhausting.”

Plaintiff was traveling north towards the fort grounds when h& reached the Fourth street crossing, when he found, standing across the sidewalk, a freight train, headed west, stalled. There were two other tracks, which were not occupied at the time the plaintiff approached the road, one known as the “south track” and the other as the “middle track.” The plaintiff was approaching the crossing with his friend Ward, and testifies as follows:

“I got down onto the crossing. Stood there for perhaps about two or three minutes when I first stopped. I looked both ways, to see if there was any train coming along. Went over a little further, and looked again. I saw a freight train stalled there on the north track. Might have stood there perhaps a quarter of a minute. I looked both ways. I looked east first, turned around, and looked to the west, to see if I could get by that train,—if it was cut in two any way so I could get around either end of it,— to see if there was an opening. I found I couldn’t get around it. I stepped back again. I should say I was about two feet from the north rail of the middle track, looking west, when this passenger train (going west on middle track) came along, and struck me, and knocked me, I should say, abóut ten feet, and threw me over on my back. My arm went out, and it took it off. The engine of the freight train was puffing and blowing off steam, so I couldn’t hear anything coming. I couldn’t hear the passenger train. Didn’t see it till I was struck. The engine of the freight train stood, I should say, about twenty feet from the crossing,— perhaps thirty feet,—west. The tail of the train extended easterly. The cars that confronted me when I came up there were box cars,—a freight train of box care. I was struck, and my arm cut off, by the passenger train, on the middle track, on the north rail, just where the point of the track comes together [meaning the frog of the switch on middle track just west of the sidewalk].”

Plaintiff was an enlisted soldier, stationed at the fort near by, and had occasion to pass and repass the crossing two or three times a week, and sometimes two or three times a day. When he reached the crossing, about 9:50, it was dark and cloudy. There was some evidence to the effect that on the night in question a passenger car was standing on the south track, east of Fourth street, and about opposite the Connor House. There was an electric light near the crossing. Defendant called an engineer, who had made measurements of the premises, and from his testimony it is claimed there was no obstruction to the plaintiff’s view of the headlight of the approaching engine for a distance of some 229 feet just before the accident, and that he could have obtained a view of the headlight of the engine at a distance of 421 feet before it reached him, although there were intervening cars on the south branch that interrupted the light afterwards and until the engine got within a distance of 249 feet. And there was evidence tending to support the position that an electric light illuminated the vicinity where the accident occurred. It appeared there was an ordinance of the city prohibiting the defendant from running its trains at the place in question faster than six miles an hour. There was evidence given tending to show that the speed of the passenger train as it came up Schuyler street was from eight to ten miles an hour. Defendant called McCarthy, the engineer of the passenger train, who testified that it was a dark night, and that the headlight of his engine was burning at the time, and that he saw the rear end of the freight train on the right-hand side of him, to wit, on the north track, when the rear end of the freight was about Sixth street, and that he slowed up his train, and came along a little further; and that just before he got where the accident occurred he saw a man on the top of the gondola, standing there, with his back towards him ; and that he got up a little further,—just about in front of him, and that he jumped off with his back towards the witness, and just as he fell the witness’ engine hit him ; and that the brakes were applied, and the train stopped; ■and that he was getting down from the engine the plaintiff was standing in front of him, by the gangway,, and that the plaintiff remarked, “ Nothing but an arm off.” In response to the testimony given by the defendant, the plaintiff testified that he did not, on the night in question, get onto any car on the freight train, or attempt to get on any, and that he did not jump off a car of the freight train upon that night, or fall from it, or- come from it in any way ; and that he did not state to any one that he expected any one on the passenger train; that he did not state' on that night that he jumped from the freight train, or anything substantially of that character. He further testified:

“ This exhaust of the engine of a freight train, or the blower, making its noise, one or the other, was being done during the entire time from the time I arrived there at the crossing, to go home, that night, until the accident. I heard no bell or whistle on the passenger train. I plainly heard this exhaust, and this blowing from the engine during the whole time. The blower made :a kind of rumbling sound; loud.”

Upon the evidence of all the circumstances attending upon the acts and omissions of the defendant on the occasion of the acci dent, we think, the question of defendant’s negligence was one of fact which should have been submitted to the jury. It was for the jury to determine what force and effect should be given to the fact, if so found from the evidence, that the passenger train was approaching the crossing at a greater rate of speed than was permissible under the ordinance of the city.

In Beisegel v. Railroad Co., 14 Abb. Pr. (N. S.) 29, it was held that:

“ It is some evidence of negligence as to third persons, on the part of a railroad company, to show that it ran its engines through the streets of a city at a speed greater than is permitted by a city ordinance, although the ordinance prescribes only a penalty for a violation of its provisions.”

In that case it appeared the trial judge charged the jury.

“ That if they were satisfied from the evidence that the engine was so running at the time, and this excess of speed beyond what the ordinance permitted contributed to the injury received by the plaintiff, it was some evidence of the negligence of defendants.”

And the court sustained the charge in an opinion delivered by Grover, J.

In Massoth v. Canal Co., 64 N. Y. 532, it was held that city ordinances of the character of the one produced in this case are competent on the question of negligence of railroad corporations, and that the proof of greater rate of speed than that prescribed, with all the other evidence in the case, is to be submitted to the jury. It was also held in that case:

“ Irrespective of any ordinance or law regulating the speed of railroad trains at crossings, the running at an excessive rate of speed is negligence, and, if a collision is caused thereby, the company is liable.”

And it was further said that:

“ As to whether the rate of speed is excessive or dangerous in the locality is a question of fact for the jury.”

Whether the plaintiff was guilty of contributory negligence was a question of fact which should have been submitted to the jury. Plaintiff testified that he looked, listened, used his eyes, and made an effort to apprehend whether the place at which he found himself was one of danger or of safety. The fact that a person, under some circumstances, could observe an approaching engine the distance mentioned by the testimony, was not sufficient to require the court to rule as a matter of law that the plaintiff was guilty of contributory negligence.

In Massoth v. Canal Co., supra, it was said:

“ It does not necessarily follow from the fact that a skilled engineer can demonstrate that from a given point in the highway the track of a railroad is visible for any distance, that an individual in charge of a team, approaching the track, is negligent because he does not from the same point see a train, approaching at great speed, in time to avoid a collision.

In Shaw v. Jewett, 86 N. Y. 616, the court was asked to charge:

“ That if they believed the plaintiff could have seen the train at distance enough from the track to have stopped his horse before reaching the track, his failure to see the train was negligence on his part, and he was not entitled to recover."

The court refused to so charge, and it was held that the refusal was not error, and in the course of the comments delivered thereon by Folger, C. J., he said :

“ That is not the rule. The plaintiff is not bound to see. He is bound to make all reasonable effort to see that a careful, prudent man would make in like circumstances. He is not to-provide against any certain result. He is to make an effort for a result, that will give safety; such effort as caution, care, and prudence will dictate.”

That doctrine was approved in Rodrian v. N. Y., N. H. & H. Railroad Co., 125 N. Y. 529; 35 St. Rep. 814, and, applying it to the case in hand, it must be said that, according to the plaintiff’s testimony, he looked both ways, and it was for the jury to determine, upon such testimony as is found in the case, whether his conduct on the occasion was that of a person using ordinary care and prudence. The question was one for the jury, and not for the court. Parsons v. N. Y. C. & H. R. Railroad Co., 113 N. Y. 355 ; 22 St. Rep. 697; Towns v. R., W. & O. Railroad, Co., 28 id. 124; Rodrian v. N. Y. N. H. & H. Railrood Co., 125 N. Y. 529 ; 35 St. Rep. 814; Sherry v. N. Y. C. & H. R. Railroad Co., 104 N. Y. 652; 5 St. Rep. 374; Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811.

Appellant calls our attention to Burke v. N. Y. C. & H. R. Railroad Co., 73 Hun, 32 ; 57 St. Rep. 7, which is unlike the case before us, as there it appeared that the deceased could “ have seen this train, and could have avoided it, if she had used her eyes for the purpose for which they were intended,” and there was no evidence that they were so used, and it was held that it was error to refuse to charge that the deceased was bound, ia virtue of the evidence in that case, to turn her head, and look for the train, before entering upon the track. We think the language of Andrews, J., in Rodrian v. N Y., N. H. & H. Railroad Co., 125 N. Y. 529 ;

35 St. Rep. 814, should be applied to the ease in hand. He there said:

“ Tf, in case of an accident at a crossing, it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage.”

The judgment in that case was reversed because of a defect in thé proof. At a later part of the opinion it is said :

“ There is not the slightest evidence that she looked up or down the track before attempting to cross, or stopped, or listened; the only evidence being that she appeared to be looking directly in frtint of her.”

We think the trial judge fell into an error when he withheld the case from the jury. Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.  