
    Michael Pulcino, Administrator, etc., of Pasquale Pulcino, Deceased, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    April 24, 1908.
    Negligence — injury at railroad crossing — charge — gates —obstruction by smoke — appeal.
    In a negligence action where the question is whether or not the gates at a railroad crossing were raised, it is not error to charge that, even if the gates were up, it was deceased's duty to use due care, but that it was for the jury to say whether the gates were raised enough to warrant the deceased in believing that the way was safe, and to what extent his vigilance was thereby lessened.
    A refusal to charge that the gates as raised were not an invitation to pass or an assurance of safety was not error.
    Nor was it error to refuse to charge that where a crossing is obscured by the smoke of a passing train one about to cross should wait until the smoke clears away enough to enable him to see up and down the track where the evidence presents no such case, and the request, though correct as a general proposition, was not put in a form applicable to the facts of the case.
    In settling a case on appeal the evidence should be reduced to strict narrative.
    Miller and Jenks, JJ., dissented, with opinion.
    
      Appeal by the defendant, the Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of January, 1907, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 30th day of January, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      William C. Beecher [Joseph F. Keany with him on the brief], for the appellant.
    
      Thomas J. O'Neill [J. Brownson Ker with him on the brief], for the respondent.
   Gaynor, J. :

The learned trial Judge in settling the case on appeal allowed the stenographer’s minutes by question and answer. This must have been inadvertent for the rule forbids it. The evidence should have been reduced to a strict narrative, and all superfluous colloquy and matter omitted. And attorneys for appellants asking this court to review the facts should observe this rule for the sake of their clients if for no other reason. The slovenly condition of the record in this case has doubled our labor of reading it.

As the decedent approached the crossing of the defendant’s steam railroad, the gates were down, and a freight train was passing Eastward, i. e., on the track on the side the deceased was on. The testimony on the plaintiff’s side is that when this train had passed the gates went up about six feet and came down again, but the deceased passed under them as they were up, looked both ways as he walked ahead, and was struck on the second track, which was distant five feet from the first, by the engine of a passenger train going in the opposite direction. The gates could not go up or down except by the gateman turning a crank, and then they moved gradually. He was there on duty. The evidence on the defendant’s side was that the gates did not go up, but that the deceased crouched and went under them while they were down and hurried across. The gate-man testified also that the signal ball for each train had dropped at nearly the same time, and he had lowered the gates for both trains.

The learned trial J udge sent only one question of negligence of the defendant to the jury, viz., whether the gates were raised about six feet as the first train got by, and, if so. whether that caused the accident, bio exception was taken by the defendant to allowing the liability of the defendant to depend on that alone, and no objection thereto is made on appeal. The evidence was sufficient to enable the jury to fairly find that the gates were raised. The learned trial J udge charged, substantially, on the question of the contributory negligence of the deceased, that even if the gates were up, it was the duty of the deceased to use due care, but that it was for the jury to say whether the gates were raised enough to warrant the deceased in believing that the raising of them was a declaration to him that the way was safe and to go ahead, and to what extent his vigilance was thereby lessened. In this there was no error. The case of Stack v. N. Y. C. & H. R. R. R. Co. (96 App. Div. 575) has no bearing. There the gates were not raised in the presence of the deceased, but were permanently out of use. The refusal of the learned trial Judge to charge in the present case that the gates as raised were not an invitation to pass or an assurance of safety was not error. It was for the jury to say whether the raising of the gates in the presence of the deceased was such.

The refusal to charge that when a crossing is obscured by the smoke of a passing train it is the duty of one about to cross to wait until the smoke clears away enough to enable him to see up and down the track, was not error. First, the evidence presented no such case. While there was some smoke as the freight train passed, the evidence shows that it had substantially cleared when the deceased started to cross. Every one saw him plainly. Second, though the request be correct as a general proposition [Keller v. Erie R. R. Co., 183 N. Y. 67), that did not require it to be charged. It is only error to refuse to charge rules of law which are put in a form applicable to the facts of the case. The fact of the gate being raised as an invitation for persons to cross was an element that entered into the matter, and it was for the jury to say to what extent it threw the deceased oil his guard, smoke or no smoke. The request should have taken this into account, for such was the case. If there had been no invitation by the defendant for the plaintiff to cross, the request might have been good, if the tracks were so covered with smoke that one could not see.

The judgment and order should be affirmed.

Rich, J., concurred; Woodward, J., concurred in result; Miller, J., read for reversal, with whom Jenks, J., concurred.

Miller, J. (dissenting):

I agree that the court should not have charged the proposition, correct in the abstract, “that where a crossing is temporarily obscured by the smoke of a passing train it is the duty of one wishing to cross over to wait until the smoke clears away sufficiently for him to see up and down the track,” but properly left it to the jury to say what care should have been exercised in that respect in view of the implied invitation to cross the track extended to the plaintiff by raising the gate ; and I also agree that there was sufficient evidence to warrant the jury in finding that the gates were raised at leastssix feet and then lowered after the deceased had passed under, but I think the evidence of the plaintiff shows that the deceased did not exercise due care.

Notwithstanding the raising of the gate, the deceased was bound to be alert; he could not rely implicitly on the implied assurance that the crossing was safe, and proceed oblivious of his surroundings. (Oldenburg v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 414, 418.) In that case the gates were fully raised, the gateman shouted to a team in waiting to go ahead, and it was proceeding to do so, and the deceased could only have seen the approaching train if he had looked an instant before he was hit, and it was held that the question of his negligence was for the jury. In the case at bar it appears that the deceased was familiar with the locality, as he was employed at the cemetery on the north side- of the track, and was in the habit of crossing at that point to go to his work in the morning. There were two tracks at this point, an east and-westbound track, the distance between the rails of each track being four feet eight inches, and between the tracks five feet four inches, so it was ten feet from the south rail of the east-bound track to the south rail of -the west-bound track. The freight train had passed to the east, and in traversing that distance of ten feet the deceased must have had an unobstructed view of the" approaching west-bound train, except as liis view may have been obscured by the trail of smoke from the engine on the freight train, about which there is some conflict, the plaintiff’s theory being that the view was entirely obscured; the defendant’s, that the wind had carried the.smoke to the north, leaving the view of the track clear. The latter theory seems to be altogether the more probable. If we adopt it, we must hold that the deceased was negligent as matter of law. lie was on foot, in control of his own movements, with nothing to look out for but himself; and even though the gates were raised sufficiently to warrant him in inferring that it was safe to cross, in the exercise of reasonable care he should have discovered the approaching train in time to avoid it unless his vision was obscured by the smoke. The care required on crossing the tracks of a steam railroad is much different from that required on crossing street car tracks in a city street. A person on foot, in the exercise of due care, will usually discover an approaching train at a steam railroad crossing in time to avoid it, and it is only when exceptional circumstances exist that the inference of negligence is not so irresistible as to compel a holding to that effect as a matter of law. If we assume that the plaintiff’s theory is correct and that the view of his intestate was obscured by the smoke, that fact required greater caution on his part. While it may not have been negligent as matter of law to cross before the smoke had cleared away, in view of the raising of the gates, the presence of the smoke at least imposed on him the duty of being in control of himself. The plaintiff’s own evidence shows clearly that the deceased saw the train when he was in a position of safety. When in the middle of the east-bound track.he and his companions stopped and looked to the left and to the right; his companions jumped back ; he started to run and was struck as he was crossing the last rail of the west-bound track. While it is not negligent to err in judgment or to do an imprudent thing on the spur of the moment when suddenly confronted by imminent peril, the situation on the plaintiff’s theory was. such as required the deceased, in the exercise of due care, to be on the alert so as not to be disconcerted by the very thing which it was his duty to look out for. The conclusion is irresistible that if the deceased had stopped when he first saw the train he would not have been hit. Instead of doing that he tried to run ahead of the train, and whether he deliberately took the chance of being hit or was disconcerted .because he had not been paying sufficient lieed theretofore, he was guilty of negligence, and the complaint should have been dismissed on that ground.

Jenics, J., concurred.

Judgment and order affirmed, with costs.  