
    Edward Kane, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. Negligence—Railroad crossings.
    Plaintiff, after looking for approaching trains and waiting for a train to pass, saw the gate go up and attempted to cross the track, but was shut in by the lowering of the gate on the other side and was struck by a train. Held, that it was a question for the jury whether he exercised due care at the time of the accident.
    3. Same—Charge.
    The whole issue as to defendant’s negligence being with reference to the management of the gates, and there being no issue or question in respect to ringing a bell, a request to charge that defendant was not bound as matter of law to ring the bell or sound the whistle is immaterial, and a refusal to so charge is not error.
    3. Same.
    A charge that raising the gates is an assurance of safety and an invitation to travelers to proceed is not error.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury, and from order denying motion for a new trial on the minutes.
    Action to recover for personal injuries alleged to have been caused by defendant’s negligence.
    
      Henry W. Taft] for app'lt; John H. Clapp and Jarvis W. Mason, for resp’t.
   Pratt, J.

This is an appeal from a judgment and order refusing a new trial upon the minutes in an action to recover damages for personal injuries. The evidence was ample to warrant the submission of the case to the jury and the verdict must stand unless some error to the prejudice- of the defendant was committed upon the trial. The charge of the judge seems to have been quite as favorable to the defendant as the facts warranted.

The train that struck the plaintiff was coming from the north and its approach was obscured by another train going north at the time the plaintiff attempted to cross the track. The plaintiff had been waiting to cross while the north bound train was passing and seeing the gate go up made the attempt to cross, but was shut in upon the track by the lowering of the gate on the opposite side of the track. He had stopped some forty or fifty feet from the track and apparently listened for an approaching train.

Under the circumstances it was a question for the jury whether he exercised due care at the time of the accident, and it was submitted to the jury under an unexceptionable charge.

The negligence of the defendant was sufficiently proved. The exception as to ringing the bell and blowing a whistle has no place in the case. Hot a word has been said upon that subject in -the complaint or the charge of the judge. The whole issue as to defendant’s negligence was with reference to the management of the gates, and, therefore, there was no issue or question in the case in respect to ringing a bell, and the request was utterly immaterial.

The charge that raising the gates was an assurance of safety and an invitation for the plaintiff to proceed was not error. Palmer v. N. Y. C & H. R. R. R. Co., 112 N. Y., 234; 20 N. Y. State Rep., 904; Glushing v. Sharp, 96 N. Y., 677.

In the last named case Earl, J., in his opinion, says: “ The raising of the gate was a substantial assurance to him of safety just as significant as if the gateman had beckoned to him to come on, and that any prudent man would not be influenced by it is against all human experience.”

We have examined all the exceptions and find none sufficient to disturb the judgment.

Judgment and order denying new trial affirmed, with costs.

Barnard, P. J., concurs.  