
    Mary A. Connolly, as Administratrix, etc., of Joseph Connolly, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — collision between a railroad train and a street car at a railroad crossing—admissibility of an agreement regulating the manner in which the street car should cross.
    
    As a street car, belonging to the Metropolitan Street railway in the city of New York and driven by one of its employees, approached within twenty or thirty feet of the tracks of the New York Central and Hudson River railroad, the horses moving at a slow trot, the flagman at the crossing signaled to the driver ■ to proceed. -At about the time when the signal was given, a train which was standing twenty or twenty-five feet from the crossing started to back toward it, and in the collision which resulted the driver of the car was killed. Upon the trial of an action brought against the New York Central and Hudson River Railroad Company, to recover the damages resulting from his death, the defendant offered in evidence a contract between it and the Thirty-fourth Street Railroad Company providing that each car of the street railroad company on approaching the crossing should come to a full stop at least ten feet and not more than twenty feet from the nearest track of the defendant; that its conductor should go forward and look in both directions for approaching trains, and that in no case should the car be started until its conductor had ascertained that no approaching train was within a distance from the crossing making it unsafe for the car to proceed; and that if any approaching train was within an unsafe distance no car should pass or attempt to pass until the approaching train had approached the crossing or come to a full stop before reaching it. The connection between the Thirty-fourth Street Railroad Company and the Metropolitan Street Railway Company did not appear upon the trial, but the defendant’s counsel stated that the contract was the one under which the crossing existed at the time of the accident.
    
      Held, that the refusal to admit the contract in evidence, as bearing upon the question of the negligence of the defendant’s employee in starting the train, constituted reversible error;
    That the fact that the Metropolitan Street Railway Company was not a party to the contract was of no importance, as, in the absence of any information or reason to believe that the car driven by the plaintiff’s intestate did not belong to the company with whom the contract was made, the defendant’s engineer ;had the right to assume that the car would stop within ten feet from the crossing, and that until he ascertained that it did not stop he was not called upon .to check the motion of his train.
    Barrett and Ingraham, JJ„ dissented.
    Appeal by the defendant, The New York Central and Hudson River 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 New York on the 14th day of April, 1898, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 12th day of April, 1898, denying the defendant’s motion for a new trial made upon the^ minutes.
    
      Herbert E. Kinney, for the appellant.
    
      Otto H. Droege, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for the negligent killing of the plaintiff’s intestate, which was caused by the collision of a horse car driven by the intestate with a train of cars of the defendant at the crossing of the street railroad and the defendant’s road, at Eleventh avenue and Thirty-fourth street, in the city of New York. The track of the defendant’s road was laid down the center of Eleventh avenue. The Thirty-fourth Street Railroad Company extended along Thirty-fourth street and across Eleventh avenue. The plaintiff’s intestate was driving a horse car on that road and was approaching the defendant’s track at Eleventh avenue. A train of freight cars of the defendant stood on the track above Thirty-fourth street and nearly at Thirty-fifth street. The rear of the train was near Thirty-fourth street, and the engine was at Thirty-fifth street. As the street car, coming from Twelfth avenue towards Eleventh avenue, approached the crossing a flagman signaled to the driver to come ahead. At that time the car of the defendant’s train which was nearest Thirty-fourth street was twenty or twenty-five feet north of the crossing, and the horses of the street car were at or near the crossing on the west side of the avenue, and were in the neighborhood of twenty or thirty feet from the defendant’s track. They were going at a slow trot. The train of the defendant commenced to move just about the time that the flagman gave the signal to come ahead, and while the horses attached to the car were twenty or thirty feet from the track. The horse car did not belong to the Thirty-fourth Street Railroad Company, but to the Metropolitan Street Railroad Company, and the driver was in the employ of the latter company. What connection that company had with the Thirty-fourth Street Railroad Company does not appear in' the case.

• Upon the trial the defendant offered in evidence a contract between the Thirty-fourth Street Railroad Company and the defendant providing for the crossing of the defendant’s track at Thirty-fourth street. It was stated by the counsel for the defendant, at the time of the making of the offer, that it was a contract under which this crossing existed at the time of the accident. The contract was offered solely as bearing upon the question of negligence of the defendant’s employees in starting the train at the time and under the circumstances that it was started. The contract was objected to; the objection was sustained, and the defendant excepted. This ruling of the court, we think, was erroneous.

The claim of the plaintiff was, that the defendant’s employees were guilty of negligence in starting the train at the time when the street car was slowly approaching the track of the defendant, and was at a distance of twenty-five or thirty feet from that track. At that time the horses of the street car were under absolute control; the car was going at a slow pace, and might have been stopped in a very short distance. These facts were apparent to every one. That, was the condition of affairs at the time the flagman made the signal,, which is claimed by plaintiff to have been a signal to the driver of the car to come on. The train was then standing still, and there was no reason to believe that it was about to start. Under those circumstances it was clearly not contributory negligence for the driver of the street car, the plaintiff’s intestate, to continue approaching the track. But was it negligence for the engineer to start his train at that time, when the driver of the street car was slowly approaching his track, and at a distance of about thirty feet from it ? The answer to that question depends upon the manner of doing business at that place, and whether the train had still the right of way at the crossing, or whether the persons upon it had any reason to believe that that right of way would be interfered with, or whether, as matters then stood, the duty was upon them to avoid the street car. If, at the time of starting this train, the engineer of the train, or the person who gave him the signal to start, knew or ought to have known that the driver of the street car was approaching the track with the intention of crossing it, the train should not have' been started, and if it was, the defendant was guilty of negligence. But if, when the train was started, the defendant’s servants might have supposed that the driver of the "street car had not determined to cross the track, or if, as the crossing was managed, they had reason to believe that the driver of the street car was likely to stop and not attempt to cross the track, they were clearly not guilty of negligence as matter of law in starting the train. Therefore, it was competent for the defendant to show what was the manner of doing business at that crossing, and whether, under ordinary circumstances, by the 'application of the rules which had been established, the street "car was likely to stop before it attempted to take the crossing.

The contract which is offered in evidence, and printed as an exhibit, is made between the New York Central and Hudson River Railroad Company of the first part and the Thirty-fourth Street Railroad Company of the second part, and was stated to be the agreement pursuant to which the crossing existed. From that statement it must be inferred that the contract was made pursuant to the- statute (Laws cf 1890, chap. 565, § 12) for the intersection of one of these railroads by the other, for that statute applies to street as well as to steam railroads. (Port Richmond R. Co. v. Staten Island R. Co., 71 Hun, 179.) It provides that each car of the street railroad company, on approaching said crossing, shall come to a full stop at least ten feet, and not more than thirty feet, from the nearest track of the party of the first part, and the conductor of the car shall go forward to the tracks of the party of the first part (the defendant) and look in both directions for approaching trains, and in no case shall the car be started forward until its conductor has looked in both directions and ascertained that no approaching train on the tracks of the defendant .is within a distance from said crossing making it unsafe for the car to proceed ; and if any approaching train of the defendant is within a distance of said crossing making it unsafe for such car to proceed, no car of the party of the second part (the street railroad company) shall pass, or attempt to pass, over the crossing until such approaching train has passed the crossing- or come to a full stop before reaching it. This contract between the defendant and the Thirty-fourth Street road was the one by which the approach of the defendant’s cars to the crossing was controlled. Within the terms of that contract, it is quite clear that the employees of the defendant in charge of the train had a right to assume that at some point between ten and thirty feet from ■ the crossing the horse car would come to a stop ; and that they had a right to manage the train in reliance upon that arrangement and understanding.

It is noticed that, although the train began to move when the street car was approaching the crossing, yet, the car being then thirty feet from the track, the duty of the driver to stop it still -existed. Those in charge of the train had the right to suppose that the driver of the street car would stop at least when he got within ten feet of the crossing, and there was no duty upon them to hold the train unless they knew, or had reason to know, that the driver was not intending to stop. But they could not know that until the driver had arrived within ten feet of the crossing and had not stopped. Then, of course, it would have been too late to stop the train; so that until it had reached a point where the collision could not have been prevented, there was no reason to suppose that the driver of the street car would persist in crossing and make it necessary for the engineer to try to prevent it. It is very clear that, if these facts had appeared, it would have been, to say the least, a question for the jury whether any employee of the defendant was guilty of negligence in starting the train at a time when he had reason to believe, or might have believed, that the street car was not intending to attempt to cross.

But it is said that the Metropolitan Street Railway Company was no party to this contract, and for this reason it is not admissible against one of its employees. That fact, however, is not a matter of importance as it seems to me. The question is not whether the driver of the Metropolitan Company violated any rule laid down in this contract, but whether the defendant’s engineer, using the crossing in accordance with this contract, had a right to rely upon it in the absence of any information or reason to believe that the street car which was approaching the crossing did not belong to the company with which the contract was made. The crossing existed by virtue of this contract. So much was made to appear in the offer, and it must necessarily be assumed from it that the rights of the defendant at least were controlled and fixed by this agreement. One of those rights was to approach the crossing with a train,, although a street car may have been approaching, in reliance U[)on the fact that the car thus approaching would stop within ten feet of the crossing, and to regulate the approach of its trains upon the theory that such stoppage would be made. Although, therefore, the engineer of the defendant saw the street car approaching, he had a right to assume that that street car would stop within ten feet of the crossing; and until he ascertained that the car did not stop, he was not called upon to take any steps to 'check the motion of his train. When the servants of defendant in charge of this train saw a horse car approaching, knowing, as we must assume they did, that by the rules which regulated the crossing, the horse car would stop within ten feet, they had a right to rely upon that stoppage unless they knew that this horse car was not one which was controlled by those rules. It seems to us, therefore, upon a careful consideration of this case, that the evidence excluded was proper for the consideration of the jury upon the question of the negligence of the defendant’s employees, and for that reason the ruling of the court was erroneous.

The judgment and order must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Yak Brukt, P. J., and McLaughlik, J., concurred; Barrett and Ikgraham, JJ., dissented.

Barrett, J. (dissenting):

We are asked to set aside a verdict here for $10,000 against this defendant, the justice of which none of us questions, upon what seems to me to be a very trivial and unsubstantial point. The case was fairly tried and carefully presented to the jury in a charge to which no exception was taken. The jury have found upon sufficient evidence that the deceased was killed by the defendant’s negligence, and that he himself was free from contributory negligence. Such a verdict thus reached should not be lightly disturbed. The point, and the sole point worthy of consideration, made by the defendant-appellant in support of its appeal, is that the learned trial justice erred in excluding a contract which it had made, three years before the accident, with a corporation known as the Thirty-fourth Street Railroad Company. This contract on its face was wholly irrelevant to the issues in this action. The deceased was not an employee of this company. He was not driving one of its cars. He had no relation whatever thereto. And yet it is seriously urged that, in an action between his legal representatives and the defendant, the latter had á right to show that this outside company had made a special agreement with it relating to the particular crossing and to the conduct there of its employees.

The defendant’s counsel offered the contract solely upon the question of the defendant’s negligence. . It bears,” he said, not perhaps upon the negligence of the deceased at this stage, but it certainly does bear upon the negligence of the defendant.” How it could possibly bear upon the concrete question of the negligence of the defendant quoad an employee of the Metropolitan Street Railway Company it is difficult to perceive. No connection between that company and the contracting company was shown or suggested. It is true that the defendant’s counsel observed that the instrument offered was a contract under which this crossing existed at the time of this accident; ” and he contends that the learned trial justice erred in not divining his meaning, namely, .that the instrument was a contract under which the Metropolitan Street Railway Company’s riyht to cross existed at the time of the accident. But why should the learned judge have inferred anything of the kind from the language which the counsel thus used ? And why should we be asked to reverse the ruling upon so vague a statement and so doubtful an inference ? The learned judge, it seems to me, was clearly justified in thinking that what the learned counsel meant was, not of course that the crossing literally existed as a locality, under the contract —■ which would have been absurd — but that the right of the Thirty-fourth Street Ra/ilroad Company to cross existed thereunder. In other words, that the instrument was the contract which governed the rights of the parties thereto', not, surely, the rights of those who were not parties thereto. If he meant any more, was he not bound tó say so ? If he intended it in some undisclosed way to embrace the Metropolitan Street Railway Company, should he have left that idea to inference? We are sometimes asked to affirm a judgment where an exception is lacking in precision or clearness, but this is the first time that we have ever been asked to reverse a judgment because the trial judge did not see through the obscurity of an appellant’s offer, or divine his real, but inadequately expressed, meaning.

But even if counsel had clearly stated that he intended in some way to connect this apparently irrelevant contract with the Metropolitan Street Railway Company ; even, indeed, if the contract had been directly made with that company, it would still have been plainly inadmissible. It was not claimed that its contents were known to the employees of either company. No presumption could certainly be indulged upon that head. If either company desired to act upon the agreement, the natural way was to make appropriate rules for the government of its employees. Companies do not usually furnish their employees with copies of their contracts with each other, or with extracts therefrom. In carrying out such contracts, they ordinarily instruct their employees as to the manner in which their duties are to he performed. No rule was here made; no instruction given ; at least none was proved, offered or suggested. How, then, can it be said that proof of the bare existence of such a contract between the two companies was admissible because its covenants might here have influenced the conduct of the defendant’s employees ?'

But, further, the defendant’s own evidence conclusively shows that its employees could not possibly have been influenced upon the ■occasion in question by knowledge of the contents of this contract. The defendant’s engineer, who actually backed the train upon the deceased’s car, testified that he “ did not see anything of the street car before the collision.” He added that, when he was “ swung up” to stop his train, he did not even know why.he was so swung up. The fact is that he was facing away from the horse car, and that he started his train upon a series of signals. First, the switch-man gave the signal to the conductor; the latter then gave it to the brakeman on the car next to the engine; that brakeman then gave it to the engineer, and then the car was started back. This is the defendant’s own testimony. Its conductor also testified that the train was thus started back on such signals. “ We moved along towards Thirty-fourth street at a very slow pace, between three and four miles an hour, not over that, and we had signals given us by the flagman at Thirty fourth street that everything was all right and to aome ahead.”

Plainly, then, the contract had no influence upon any of the actors upon the scene. Not one of the defendant’s employees intimated that he knew or acted upon it, or was influenced by any of the beliefs or suppositions which it might have suggested. The concrete question was whether the defendant was negligent in proceeding at almost the very moment when it invited the deceased to cross, and to cross freely, in perfect assurance of safety and without cautious inquiry. The evidence was conflicting as to whether or not it did this. It was upon that, and that alone, that the defendant’s negligence was predicated. And in the end, it all came down to a question of fact as to whether the last flagman — the man at the Thirty-fourth street crossing — was so guilty. It was he whose original signal set all the succeeding signals in motion. Was he justified in signaling to his co-employees that everything was all right and to come ahead ? There was abundant testimony for the consideration of the jury that this flagman flagged the deceased that all was right and to come on. There was also abundant testimony conflicting therewith. The plaintiff’s witnesses declared that the flagman pointedly beckoned the deceased to cross — thus in-effect telling him that he need not pause, need not look to the right or the left, that all was safe ; while the defendant’s witnesses declared the direct contrary, namely, that the flagman flagged not the deceased, but his own people to come on. The issue was thus distinct and crucial. As the jury believed or disbelieved the witnesses, the verdict must go. To say that upon the precise j>oint thus in issue, upon the only question thus debated—in fact, upon the only question submitted by the court to the jury—the terms of this contract might have affected the conduct of the engineer, who was a mere machine, responding to a series of signals, or of the switchman and brakeman, whose response to the signals was equally automatic — seems like a travesty upon the situation. The contract, in its relation to the immediate and actual incident, is in the air, and the reasoning based thereon seems very much in the clouds. The terra firma issue was whether the original flagman at the crossing was negligent. The learned judge put that single question to the jury. In his charge he says that the plaintiff’s witnesses testified that they saw the flagman beckon Connolly, the deceased, to come on, while the flagman, on the contrary, testified that he signaled Connolly to stop. The learned judge then referred to the probabilities and improbabilities of these respective statements, and left it to the jury to say whether, in fact, the flagman did or did not beckon Connolly to come on. Certainly the contract was not admissible merely to strengthen the credibility of the defendant’s witnesses, and it could, under these circumstances, have had no other office.

The contract, therefore, had no conceivable bearing upon the issues submitted to the jury upon the conflicting testimony. It was' inadmissible in any aspect of its presentation as evidence, and if admitted could not possibly — certainly not justly — have affected the result.

The judgment should be affirmed, with costs.

Ingraham, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  