
    George White, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury from a snow plow — approach by a mail carrier to railroad tracks on the mistaken assumption that awhisUe was sounded by the mail train — contributory negligence.
    
    In an action to recover damages for personal injuries, it appeared that the plaintiff. was engaged in carrying mail to and from the mail trains at the defendant’s station at Mallory, N. T; At this station the defendant’s tracks consisted of a main track and a siditig, the distance between the two tracks being six feet nine and seven-tenths inches. On the day of the accident the plain- , tiff went to the station to meet a mail train due there a little before two o’clock in the afternoon. Considerable snow had fallen and the train was late. After sitting in the station for a short timer the plaintiff heard an engine whistle at the crossing about half a mile south of the depot and the station agent then said to him, “ George, here comes your train.” The plaintiff then went to ‘ meet the supposed mail train and when he had reached the space between the siding and the main track he was struck by a snow plow, which was running on the time of the mail train and which was propelled by an engine traveling at the rate of thirty-five or forty miles an hour, and which the plaintiff contended had not given adequate signals of its approach.
    
      , An ordinary passenger or mail coach, projects over the track about two feet five-inches, while the snow plow projected from seven to eleven inches further.
    The evidence indicated that. although the view of the approaching snow plow was obstructed'to some, extent' by some freight cars standing upon the side ' track, the plaintiff.could, before he came within three feet of the main track,. have looked by the freight cars a long distance down that track.
    
      Held, that the plaintiff had not established his freedom from contributory . negligence; ...
    That the plaintiff was not justified in. assuming that the approaching train was: ' the mail train;
    That if. he.had looked dowhthemain track, when he might have done so, he would: have seen the snow plow, and; that if he did not look he assumed the risk of:, the accident.
    .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, énteréd in the office of the clerk of the-county of Oswego on-the 2éth day of April, 1901,- upon the verdict-’ of a jury for $2,,000, and also from an order entered in said clerk’soffiee on the 22d day of April, 1901, denying the defendant’s motion, fór a new trial made upon the minutes.
    The action was brought by plaintiff to recover damages sustained, by him through being struck by a snow plow upon defendant’s, road.
    ■ Henry Pureell, for the appellant, .
    
      Irving G. Hubbs, for the respondent. '
   Hiscock, J.:

- ...Upon the evidence in this case¡ the'jury had a right to finch-amongst other things, as follows : ■ .

For some time prior to the day of the accident, March 1, 1900,. plaintiff was engaged in carrying the mail, from the -village of Mallory. to defendant’s cars at the station of Mallory: This station was.. one little used, situate upon a. line of road operated by defendant, running from Syracuse northerly to Richland. Defendant’s tracks-passing it consisted of a main track and a siding- From the door - leading into the passenger room of the station to the nearest rail of ', the main track was twenty-one feet and three inches,.and fo the first-rail of' .the side track was nine feet and four inches. . The distances. between these two tracks directly in front of the door was six feet nine and seven-tenths inches. Plaintiff upon this occasion came to the station to bring the mail to a train due there from the south a: little before two o’clock in the afternoon. It was somewhat late, that day and he sat down in the station and waited for it. After-sitting there for a little time he heard an engine whistle at the-crossing about half a mile south of the depot and the station agent, said to him, “ George, here comes your train.” These mail trains-, came into the station ordinarily at a comparatively slow rate of speed, did not stop long, and within a short range varied somewhat, in their points of stoppage in front of the station.

Plaintiff took his mail bag and followed a little path in the snow leading from the door of the station directly to the passenger track; Southerly of this path, and, therefore, in the direction from which the train was approaching, and about sixteen feet from the path,, were some freight cars, which obstructed the view in that direction. The tracks, both main and side, were parallel for a long distance towards the south. Instead of the passenger train it was a snow plow driven by a engine which was approaching. It was going at the rate of thirty-five or forty miles an. hour, not drawing to any stop for the station, ringing no bell and blowing no whistle, except as it must have blown at the crossing above suggested and except as it gave danger signals before striking plaintiff. It was running on. the time of the passenger train as a first section thereof.

Plaintiff, according to his evidence, just crossed the side track,, and, according to the evidence of another witness, did not come-within about three feet of the main track. He says: I just-stepped across this rail (of the siding) and I see this train right on to me; I made a spring back and was caught.” And again, “ After-leaving the-door at the point where I saw the smoke, I went just, across the switch track; in going that distance from the door across, the switch track I couldn’t see up the track or south on the main track; the box cars obstructed my view of the track.”

An ordinary passenger or mail coach projects over the track about two feet five inches. The snow plow projected over from, seven to eleven inches further. *

Of course defendant’s version of the manner in which this- accident occurred differs very materially from plaintiff’s. But we must base our decision upon the findings most favorable to him which a jury would be entitled to make upon the evidence.

It is claimed that the defendant was guilty of negligence in running this snow plow by this station at so high a rate of speed without ’adequate signals. Assuming simply for the purposes of this opinion, rather than actually holding, that the defendant might have been found guilty of negligence in these respects, we pass to the consideration of plaintiff’s own Conduct, and to the determination of the question whether he was so free from negligence that he can recover.

Upon this issue his counsel has urged with much earnestness and ability that under all of the circumstances plaintiff had a right, to rely upon the approaching train being the ordinary passenger and mail train; that having in mind the brief stoppage "of such trains and the expeditious performance of his duties it was proper for him tó go to the side of the track before the train came to a full stop; that his view of the ajoproaching train was obstructed; that his position would have been perfectly safe if the train had been the one he expected; that it was only made dangerous by the unexpected passage of the show plow at a high rate of speed and projecting several inches further over the track than the cars which he expected.

This is substantially the theory upon which the case was submitted to the jury upon this point by the learned trial justice. While it has thus been urged with much force which entitles it to careful consideration, we think this contention is subject to defects, and that, if sustained, it Avould permit persons approaching moving trains to measure their conduct by altogether toó liberal rules of chances and risks and would impose upon railroad companies too rigorous and burdensome responsibilities.

There are certain facts \yhich must be charged against plaintiff upon the undisputed evidence. He" kneAV that a train avbs coming. No other signals and no more extensive vieAV of the track avbs necessary to apprise him of this. He expected that the head, at least-, of the train would run beyond Avhere he Avas. While perhaps the chances Avere that it AVould be the mail train for which he was waiting, we do not think that he had a" right to absolutely assume or-rely upon this. There had been a considerable fall of snoAV, and plaintiff, of course, kneAV that the defendant used snoAV ploAvs. It had a perfect right to use them, and we may assume that the use of one necessarily involved running it at a considerable rate of speed There was nothing improper in the construction of or out of repair about this plow. In this respect this case differs from that of St. John v. N. Y. C. & H. R. R. R. Co. (165 N. Y. 241), especially . relied upon by respondent, where a passer-by waiting at a railroad crossing was struck by an improper projection from one of defendant’s trains. The train which plaintiff expected was behind time,, and this, in view of the season of - the year and the condition of the track from snow, was of itself somewhat suggestive that there might be some variations from the ordinary operation of defendant’s road. We do not think that the remark by defendant’s station agent to plaintiff that his train was coming was an assurance or guaranty to plaintiff upon that subject. The trial justice so held. So far as the evidence discloses, this remark by the station agent, assuming that it was made by him, was an assumption based upon the ordinary course of events which plaintiff could have drawn as well as he. Plaintiff says that just as he stepped across the last rail of the siding he saw this snow plow upon him and jumped. This rail was nearly seven feet from the nearest one of the tracks upon which the snow plow was approaching, and, therefore, if he is correct in that statement, he was not within three feet of the snow plow and was not in any such place of danger as would adequately account for and charge defendant with his injuries; Another witness indicates that he had come within three feet of the main track, and this would account for his accident. The freight cars which it is .claimed obstructed his view of the approaching train were sixteen feet from the path which he used, and upon the evidence with reference to the measurements of passenger and mail cars it is fair to assume that these freight cars did not project over the track upon which they stood more than two feet and a half. Before he came within three feet of the passenger track he, therefore, cduld have looked by the freight cars a long distance down the track upon which the snow plow was approaching. If he did this he must have seen it. If he did not and came so close to the passenger track as to be in-a position of danger, we think he did not use the precautions which were necessary and was guilty of taking risks which prevent him from recovering for an accident flowing therefrom.

In'accordance with these views, we conclude that the judgment and order appealed from must be reversed and- a new trial granted, with costs to appellant to abide event.

Adams, P. J., McLennan, Spring and Williams, JJ., concurred.

Judgment and order reversed upon the law, thé court having examined the facts and found no error therein, and new trial •ordered, with costs to the appellant to abide the event.  