
    SCAGGS v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    1. Railroad Companies—Accident at Crossing.
    In an action against a railroad company for the death of plaintiff’s intestate, caused by an accident at a railroad crossing in a large village, there was evidence that defendant’s locomotive stood projected about 15 feet into the street for about 20 minutes; that at the end of such time its gates were raised, and deceased crossed in front of the engine near the center of the street, followed closely by a horse and wagon; and that just as the horse crossed the track the automatic valve of the engine opened, and emitted steam, and frightened the horse so that he ran against and fatally injured deceased. Held, that the' question of defendant’s negligence should have been submitted to the jury.
    
      8. Same— Contributory Negligence.
    It appeared that, before crossing, deceased was on the side of the street nearest the engine, and that in crossing the railroad tracks she went diagonally across to the opposite side of the street. Held, that it cannot be said, as a matter of law, that deceased was guilty of contributory negligence.
    Mayham, P. J., dissenting.
    Appeal from circuit court, Saratoga county.
    Action by Kate Scaggs, as administratrix of the estate of Eleanor Downing, deceased, against the president, managers, and company of the Delaware & Hudson Canal Company, for the death of plaintiff’s intestate, caused by defendant’s negligence. There was a judgment of nonsuit, and plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Jesse Stiles, (James W. Verbeck, of counsel,) for appellant.
    Lewis E. Carr, for respondent.
   PUTNAM, J.

This action was brought to recover damages for the death of plaintiff’s intestate on August 6, 1887, which, it is alleged, was caused by defendant’s negligence. The accident occurred at the place where Division street, in the village of Saratoga Springs, running easterly and westerly, crosses defendant’s railroad track, running north and south. Deceased approached the track on the north side of Division street, from the east. A train was standing on the easterly track, its engine projecting into the street about 15 feet. The gates were down, and the gateman stood on the north side -of Division street, and on the east side of the track. One Priester, with a horse and wagon, came up to the crossing, also from the east. His horse was uneasy and restive. Deceased and Priester remained about 20 minutes at the crossing, she standing quite near the gateman. The latter opened the gate high enough for deceased to pass, and looked at her. She then started to cross diagonally. When in front of the engine the gate tender raised the gate higher, so that Priester could pass; and he started, deceased at the time being in front of the engine. As Priester’s horse started over the crossing the engine began blowing off steam, or “popping off,” and frightened the horse, so that it ran against deceased, producing injuries that caused her death. The defendant’s motion for a nonsuit was granted, and judgment entered dismissing the plaintiff’s complaint.

The usual questions in this class of cases as to defendant’s negligence and the freedom, of plaintiff’s intestate from contributory negligence are presented for consideration. The question as to the contributory negligence of deceased requires no discussion or citation of authorities. The deceased, after waiting for 20 minutes at the crossing, on the gates being raised by the defendant’s servant, attempted to go over the track. The raising of the gates was an assurance to her of safety as significant as if the gateman had beckoned to her or invited her to cross. Callaghan v. Railroad Co., 52 Hun, 276-278, 5 N. Y. Supp. 285. The facts were all before the trial court. There, is nothing appearing to indicate negligence on the part of deceased. In crossing she was compelled to pass in front of the engine and into the traveled part of the street. Being there, she could as well turn to the southerly as to the northerly side of the highway. Under the circumstances it cannot be held, as matter of law, that deceased was guilty of contributory negligence. As has been often held, the cases are rather exceptional where the question of contributory negligence can be taken from the jury, and this is clearly not one of those unusual cases. The real question for consideration is whether the plaintiff succeeded in showing a negligent and wrongful act on the part of the defendant which caused the death of plaintiff’s intestate. It is held in Borst v. Railway Co., 4 Hun, 346-350; Id., 66 N. Y. 639,—a case in some regards similar to this,—“that the very position of this engine in the public highway, and the occupation and blocking up of said highway by it, was of itself an act of negligence.” In the case under consideration the engine remained in the highway 20 minutes before the gates were raised; and when the gates were so raised, plaintiff, having to cross the tracks, necessarily was compelled to go close to the engine. Under the authority above cited the fact of defendant’s occupying the highway with its engine would seem evidence of negligence on the part of defendant sufficient to carry the case to the jury.

It is suggested by the learned counsel for defendant that there is no evidence that the standing of the engine in the street caused the accident; that it was the escaping of steam—the “popping off” of the engine—that frightened the horse; that this popping off was purely the result of a mechanical operation; that it was shown,that when an engine stands a little while steam accumulates, and when it reaches a certain point the automatic safety valve “pops,” and that is what caused the sound. In other words, an engine standing is liable, from time to time, to have this escape of steam, and make the same kind of noise that frightened Priester’s horse. We think the. facts shown in this case—the raising of the gate by defendant’s servant, which, as we have seen, was an assurance of safety to Priester and deceased, its engine at the time projecting 15 feet into the highway, so that a person in crossing must pass close to it, and which engine was liable at any time suddenly to blow off steam, and make a noise calculated to frighten a horse—evidence of negligence that should have been submitted to the jury. The negligence was not in leaving a silent engine in the highway, but an engine that puffs, blows off steam, and “pops.” The negligence was in leaving an engine as it was in the place where this one was left. If the engine had been out of the highway, so that Priester’s horse had not been compelled to pass close to it, and steam was blown off, the jury could have found from the evidence that the horse would not have become unmanageable. Priester had been able to manage it for 20 minutes 30 or 40 feet from the gates. It is urged by counsel for defendant that there is no evidence showing that defendant’s train to which the engine in question was attached was not so long as to make the projection of the engine into the street unnecessary. If the engine was necessarily in the highway it was for the jury to say whether it was not negligence on the part of the defendant to raise its gates, and thus invite travelers to pass over the track, knowing, as its servants did, of the liability of the engine to suddenly emit steam. See Keech v. Railroad Co., (Sup.) 13 N. Y. Supp. 149. Again, whether it was necessary for the engine to remain in the highway was a question of fact under the circumstances of the case. The defendant could have detached its engine, and taken it across the street. Can it be deemed necessary to block up a traveled street in a large village for 20 minutes, when in a moment the engine could have been detached and moved? On the whole we think that the evidence which showed that defendant left standing on the track in a traveled highway a dangerous machine, liable at any moment to “pop off,” and thus frighten horses, and while the engine was so standing raised its gates, evidence of negligence which should have been submitted to the jury. If a negligent act of defendant caused Priesteris horse to become frightened and run away and cause the death of plaintiff’s intestate, this action can be maintained. Lowery v. Railway Co., 99 N. Y. 158, 1 N. E. 608. The judgment should be reversed,' and a new trial granted, costs to abide the event.

HERRICK, J., concurs, upon Borst v. Railway Co., 4 Hun, 346. MAYHAM, P. J., dissenting.  