
    Sadie V. Legg, as Administratrix, etc., of Harry P. Legg, Deceased, Appellant, v. The Erie Railroad Company, Respondent.
    Second Department,
    December 30, 1910.
    Railroad — negligence — collision at grade crossing -^failure to operate gates — contributory negligence.
    Where gates guarding a railroad crossing had a conspicuous sign stating that they would be operated only from seven o’clock in the morning to eleven in the evening, the fact that the gatetender would sometimes operate the gates before the time set if he happened to begin his duties ahead of time, does not establish a custom obligating the railroad to operate the gates before seven o’clock, so as to make it liable for the death of a person who was killed while attempting to cross the tracks before that hour.
    A person who, while driving across railroad tracks and seeing a train approaching not inore than 500 or 1,000 feet away, and being then in a place of safety whipped up his horses in an attempt to pass before the train, was guilty of contributory negligence, which bars a recovery for death resulting from a collision with the train.
    Hirschberg, P. J., dissented.
    Appeal by the plaintiff, Sadie Y. Legg, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, . entered in the office of the clerk of the county of Orange on the 12th day of July, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Orange Triál Term, and also from an order entered in said clerk’s office on the same day ’ setting aside the verdict of a jury for $15,000 in favor of plaintiff and dismissing the complaint.
    ■ Mosslyn If. Cox \_Abram F. Setvin with hini on the brief], for. the appellant.
    
      John Bright, for the respondent.
   Woodward, J.:

This action is brought to recover damages for the death of plaintiff’s intestate, who was killed while driving across defendant’s 'railroad crossing in the city of Middletown. At the close of the testimony defendant moved to dismiss the complaint on the ground that defendant was not shown to have been negligent, and on the ground of contributory negligence on the part of plaintiff. Decision on this motion was reserved, defendant taking an exception, and the case was submitted to the jury. On the jury returning a verdict for plaintiff for $Í5,000, defendant moved to set it aside, and for a new trial, on the grounds specified in section 999 of the Code of Civil Procedure. The court reserved decision on this motion and subsequently granted defendant’s motion, made at the.close of.the testimony, to dismiss the complaint, and in granting this motion handed down an opinion, setting forth reasons for granting the nonsuit. (124 N. Y. Supp. 8.)

In its opinion the court says that thére is sufficient evidence to establish defendant’s negligence in the premises, but that the testimony does not exonerate plaintiff’s intestate from contributory negligence; and in this view, after a careful examination of the case, we are inclined to concur.

The plaintiff, who conducted a fish market within- two or three blocks of the point where West Main street, in the city of Middle-town, crosses defendant’s railroad, had for. a long time crossed defendant’s tracks at this point, early in the morning, at least as often as once a week, and particularly on Thursday mornings. The crossing was equipped with gates, and a conspicuous sign informed the public that these gates would be operated only from seven o’clock in the morning to eleven in the evening. There was some' evidence in the case that the gateman had, at times, operated the gates for a train which passed through Middletown at about six-fifty in the morning, and which was the train that caused the accident here complained of, but this evidence was not calculated to estab- ■ lisli that this was the usual or long-continued practice. The most that can be said of it is that it appeared that the flagman usually arrived on the ground just before seven o’clock in the morning; that he swept out his shanty and made preparations for the day, and if he happened to get through in time, he would unlock the gates, which were fastened in a perpendicular position during the night, and lower them for this train. It does not appear that this custom had continued for a long time, or that it was generally known, or that plaintiff’s intestate had any knowledge of the fact, or that he had any reason to believe on the morning of the accident that the gates would be operated until the time fixed by public notice. (See Ernst v. Hudson River R. R. Co., 39 N. Y. 61; Dolan v. D. & H. Canal Co., 71 id. 285.) True, it appears in the record that the flagman was near the gate at the time the deceased drove upon the track, and there is some evidence from which the inference might arise that he motioned to plaintiff’s intestate, but just what was intended by the motion, if anything, is not brought out, the flagman having died before the trial. But the fact remains that the gates were not required to be operated until seven o’clock, and there is nothing in the evidence from which it can be made to appear that plaintiff’s intestate had any reason to believe that the gates would be operated before that time. The case is distinguishable from that line of cases where the flagman on duty raises the gates, or otherwise conducts himself in such a manner as to mislead persons about to cross the tracks, or where the flagman, who.has long been on duty, and upon whom the public has learned to rely, deserts his post. (Dolan v. D. & H. Canal Co., supra.)

The defendant maintains four tracks at the point of crossing West. Main street in Middletown. One of these is a short stub switch running toward an electric lighting power house, and connecting with a main siding, which has all the appearances of a main track at the point of-the accident and for a long distance—;as far as the eye can reach — in either direction. The decedent was driving west, and the first track which he reached was this stub switch. At a point in the middle of the highway, and 10 feet to the east, there was a view of defendant’s tracks for a distance of 150 feet, and the point we have mentioned would be something over 50 feet from the fourth track, on which defendant’s train was approaching from the north or right-hand side of the decedent. A photograph taken from the first rail of the first track, which is 40 feet or more from-the first rail of the fourth track, gives a view of defendant’s track to the north of over 2,200 feet; and the undisputed testimony is that decedent on crossing the first track was looking to the left; that as he reached a point about the middle of the second track, and at a point where he was absolutely safe, he looked, to the right and grabbed his whip and struck his horse, which was at the time jogging about five or six miles an hour, increasing his pace to about eight miles an hour. The horse cleared the fourth track, but the train hit the wagon,- severing it from the horse and killing the decedent.' . The evidence in this regard is furnished by plaintiff’s own witnesses, two of them agreeing in all essential particulars, and one of them testifying in the main to the same facts, though becoming uncertain and contradictory to some extent; and it clearly appears that at a time when plain tiff’s in testate could see for a distance of more than 2,000 feet he looked in the direction from which the train was approaching, and when it could not have been more than 500 to 1,000 feet away, and from a point of safety urged his horse forward, with the result as stated. The only fair inference is — the only inference consistent with the law — that he saw the approaching train at a distance of not more than 500 feet away, and that he attempted to force his horse across the track in advance of the train, at a time when he was not in danger, and when a simple stopping of the horse would have averted the calamity. The situation is almost identical with that presented in Getman v. Delaware, L. & W. R. R. Co. (162 N. Y. 21), and we are of opinion that plaintiff did not sustain the- burden of proving that her intestate was free from negligence contributing to the accident.

The judgment and order appealed from should be affirmed, with costs. . -

Jenics, Buee and Rich, JJ., concurred; Hibschbebg, P. J., dissented.

Judgment and order affirmed, with costs;  