
    KOEHLER v. ROCHESTER & L. O. R. CO.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1893.)
    Accidents "at Railroad Crossings. Where one who is familiar with the dangerous surroundings of a railroad crossing, and with- the running of trains at that point, approaches it, with others, in a manner so boisterous and reckless as to prevent him from observing precautionary signals, and is injured by collision with a train, he is guilty of contributory negligence. .
    Appeal from circuit court, Monroe county.
    Action by Jacob Koehler against the Rochester & Lake Ontario Railroad Company to recover for personal injuries sustained in a collision. From a judgment entered 'on a verdict in favor of plaintiff for $12,500, and from an order denying a new trial on the minutes of the court, defendant appealed. Reversed.
    Argued before DWIGHT, P. J., and MACOMBER and LEWIS, JJ.
    Cassius C. Davy, for appellant.
    Thomas Raines, for respondent.
   DWIGHT, P. J.

The plaintiff was hired as a musician to accompany a pleasure'party from Rochester to Irondequoit Bay on a Sunday morning in August, 1892. There were 28 of the party, and they went and returned in a hired carryall, driven by the owner. On their return, in the evening, they came into the city by Jennings street, and it was just about 9 o’clock when they reached the intersection of Jennings street with North avenue, on the east side of which was the track of the defendant’s road. At this crossing the carryall was struck by a locomotive engine of the defendant, drawing'a tr&in from the north, and the plaintiff was badly injured. There was evidence strongly tending to show that as the carriage approached the crossing, and up to the moment of the collision, the company was engaged in hilarious singing and shouting, which must probably have prevented any effective listening for an approaching train. This evidence was given by some eight or ten persons who were near the coiners of the two streets, either on the sidewalks or on the piazzas, or in open windows of neighboring houses. Several of them testify that the loud noise of singing and shouting continued up to the moment when the crash of the collision and the screams of terror were heard. This evidence was to some extent contradicted by some members of the party in- the carriage; but, if the fact was a material one, the evidence was clearly such as to require the submission of the question to the jury. The plaintiff’s own testimony showed that he was familiar with the crossing, and its • surroundings, and with the running of trains ■ at that point. He knew that an orchard, with thick foliage, and a building in the angle between Jennings street and North avenue completely obstructed the vision of the driver in the direction from which the train approached, until his horses’ heads were actually upon the track of the railroad. He knew that a train was due at that crossing only a very few minutes, if at all, before the arrival of his party there. He had looked at his watch under an electric light about 500 feet from the crossing, and found the time to be “9 o’clock, or a little before,” and he knew that the train was due at the North' street station at five minutes before 9.

■ Such being the case, counsel for the defendant, at the proper time, requested the court to charge “that if the plaintiff and his companions in the carryall approached this railroad with music and singing, and that thereby they were prevented—or he was prevented—from hearing the bell of the train, if it was rung, he was guilty of contributory negligence, and cannot recover.” The court declined to vary the charge already given in this respect, and counsel for defendant excepted. But the court thereupon proceeded to instruct the jury further in this particular, and to the effect that only so far as the plaintiff concurred in making the noise, and was a party to it, and helped it along, could he be charged with carelessness in going upon the crossing, with such a noise about him. This was not what the court was requested to charge, but, rather, was calculated, we think, to convey an impression contrary to the purpose of the request. The proposition which we think was fairly presented by the request was that it was negligence in the plaintiff to go upon the track'with the din of noise in his ears which prevented him from hearing the sound of the approaching train, and this without regard to whether he was making, or helping to make, the noise. We think the proposition wjas a correct one; that it was the duty of the plaintiff—familiar, as he was, with the situation and its dangers, knowing that the train, if approaching', could not be seen, and that the only safeguard was the sense of hearing—to refuse to go upon the crossing in a noise which prevented the exercise of that faculty. If his warnings and expostulations had no effect upon the driver or the company, it was his duty to look out for his personal safety, and escape, if he reasonably might, from an environment so fraught with danger to himself; and this it would seem he could easily have done, because, as he testifies, the horses were going at a walk, and he was seated immediately at the door, in the rear end of the vehicle,—in the last seat on the south side, next the top of the steps by which passengers alighted. We think the defendant was entitled to an instruction to the jury, substantially to the effect that, if the plaintiff permitted himself, under the circumstances of this case, to be carried upon that crossing jn a noise of singing and shouting which prevented him from exercising his sense of hearing to discover the approach of the train, he was guilty of negli-. gence which contributed to produce the casualty of which he complains, whether he was engaged in making a noise or not. The judgment and order denying the motion for a new trial should be reversed.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.  