
    Augusta Lindeman, as Adm’x, App’lt, v. New York Central and Hudson River R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    Negligence—Contributory negligence—Non suit—Error—Question J'OR JURY.
    In an action brought by plaintiff, as administratrix, to recover damage for the death of her intestate, alleged to have been occasioned by the negligence of defendant, the evidence showed that the deceased on a dark night attempted to cross, on the highway, defendant’s track, and was killed by one of defendant’s engines. This crossing was generally protected by gates during the time of passing of any train or engine, hut on this occasion the gates were up, the engine which struck the defendant was backing slowly, and was not furnished with a light. Evidence also showed that one B. shouted to deceased, warning him of his danger. Held, that plaintiff was improperly non-suited; these facts showed negligence on the part of the defendant; the raising of the gates was an intimation to the deceased that the tracks were safe to cross. That it was for the jury to determine whether or not decedent heard the warning given; that® the question of his negligence should have gone to the jury.
    
      John S. Wolfe, for app’lt; Frank I^oomis, for resp’t.
   Learned, J.

This is an action brought by the administratrix of William Lindeman, deceased, to recover for his death, alleged to have been occasioned by the negligence of the defendant.

The plaintiff was non-suited at the trial, on the close of her own evidence, and appeals.

Lindeman was a charcoal peddler, and had been in Albany the day of the accident with a load of charcoal. He was returning with a team of horses and his empty charcoal wagon, and about nine o’clock he reached a place where the highway crossed the defendant’s three tracks on grade.

It was on the eighth of June and the night was “pretty dark.” As the deceased drove across the track he was struck by an engine of the defendant’s, which was backing down southward, without' any light upon it and without ringing a bell or blowing a whistle. Across the highway, on the west side of the tracks (from which side the deceased approached) were gates consisting of two white poles which were usually lowered across the highway when trains are coming, and which, when lowered, make it impossible to cross the tracks. After trains have gone by, the gates are raised. They are worked by a crank, on "the north side of the highway and west of the tracks. At the time of the accident the gates were open. These gates are about six feet from the track nearest them. The first point where a man approaching the tracks could get an unobstructed view of them was about seventy-three feet distant therefrom.

One witness testified that the deceased, just before reaching the track, was standing in his wagon leaning on the forward part and looking up and down to see if there was any danger coming.

The defendant’s flagman, a short time before the accident, had been in the shanty on the south side of the highway, and the east side of the track. Soon after that Brown,who was working for a dispatch company, came out of the shanty and stood on the easterly side of the tracks looking south. While standing there he heard the flagman halloo, and turned and saw the engine coming on the west track. It was then a short distance from the crank, which is on the northerly side of the highway where the arm of the gate is let down. The engine must have been at that time near to the highway. Brown then saw the team coming and hallooed: “stay back.” The distance from Brown to the place of the gate was about fifty feet. The flagman was on the easterly track. The engine struck the forward part of the wagon and did not hurt the horses. They must have crossed the track coming on a little trot.

There was evidence of negligence on the part of defendant. Absence of light, and no sound of bell or whistle with open gates were facts for a jury to consider.

As to deceased, the question of negligence is this: Did he do what a prudent man would not, or omit what a prudent man would have done? Kellogg v. N. Y. C. and H. R. R. R., 79 N. Y., 72; Stackus v. N. Y. C. and H. R. R. R., 79 id., 468.

As to the hallooing of the flagman and of Brown, it must be a question for the jury whether that was heard over the noise which a charcoal wagon would make in the ears of one riding therein.

The defendant insists that he could have seen the engine if he had looked, and was therefore negligent as a matter of law. But he has passed this place before, and therefore knew of the gates. He saw they were not across the road, and, as they were white, he undoubtedly saw them standing upright on each side. As said- in Glucking v. Sharp (96 N. Y., 676), this was an assurance of safety just as significant as if a gateman had beckoned to him or invited him to come on.

How suppose one approached a crossing and a gateman beckoned to him to come on, and suppose he saw an engine slowly backing towards the crossing, a prudent man might infer that the gateman knew that the engine was to stop before it reached the crossing, and that there was no danger. It may often be the case that engines are moving near a crossing, and towards it, which are not to cross. The gateman knowing -this, signals the traveler to cross. May he not then cross with prudence, although he sees the engine?

This engine was not drawing a train. It was a single engine without cars, backing about five miles an hour. That it was not about to go across the track was notified to the public by the fact that the gates were open. Directors of N. E. R. W. Co. v. Wanless, L. R. 7 Eng. and Irish App., 12; affirming 6 Q. B., 481.

The opening of the gates is an affirmative act, giving every traveler to know that the crossing is safe. And though he should see an engine backing at about the rate of a rapid walk, lie might think it would stop before it reached the place where the company had, by their signal, said the engine was not to go.

How far the witness Creed was to he credited was a question for the jury.

Taking all the circumstances into account, especially the open gates, the slowness of the engine’s backward motion, the absence of light on it, the noise which the wagon would naturally make, we think that the question of the negligence of the deceased should have gone to the jury. They are the proper judges whether he acted as a prudent man would have done.

Judgment reversed, new trial granted, costs to abide event.

Bockes and Landon, JJ., concur.  