
    Jeremiah Callaghan, Adm’r, etc., App’lt, v. The Delaware, Lackawanna and Western Railroad Company et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1889.)
    
    1. Negligence—Contributory—Railroad Crossing — When question
    FOR THE JURY.
    The plaintiff was driving a team, attached to a farm wagon, along a street in Syracuse; the street crossed the tracks of the D., L. and W. and N. Y. C. R. companies at almost right angles; there were gates both" sides of the tracks at the crossing. As the train approached the east ■crossing the gates were down and a train of the N. Y. C. passed by, going north. It was in the day time and there was an unobstructed view of the tracks south for forty-one feet before reaching them. As the train passed, the gate tender began to raise the east gate, and as the bars went up the team was started along under the gates to cross the tracks. As it came upon the N. Y. C. tracks the people in the wagon first saw a train on the D., L. and W. track approaching from the south. The gate tender did not raise the west gate.- He motioned to the people in the wagon, and they supposing it a signal to come on, the plaintiff became excited and whipped up his horses and drove across the tracks. When on the D., L. and W. track the train struck the wagon and the plaintiff’s wife was Idlled: Held, that the question of contributory negligence was for the jury; that it was error to direct a nonsuit and dismissal of the complaint on this ground.
    S. Same—Care and prudence—Question of fact for the jury.
    
      Seld. that whether they relied upon the act of the gate keeper raising the gate, and therefore made a less vigilant use of their eyes than they would otherwise have done to discover whether a train was coming, and whether they were justified in so doing;' whether they failed, under the circumstances, in view of the raising of the gate to exercise such a degree of care as an ordinarily careful person would have used, were questions of fact for the jury.
    3. Same—What facts rebut negligence.
    
      Seld, that if the people in the wagon were free from negligence up to the time they discovered the approaching train when the team was upon the N. Y. O.’s tracks, then when they first discovered the train they were in a place of danger, brought there by the negligence of the gate tender, and it was a question for the jury whether in attempting to extricate themselves 'from this danger, being excited and not knowing or being-able to judge correctly which track the train was upon, they exercised, such a degree of care and caution as an ordinarily careful person would have used; if they did, they were not negligent, though they entirely-failed so to act in the sudden emergency as to insure safety.
    Appeal from judgments in favor of. defendants, entered, upon an order directing a nonsuit, and dismissal of plaintiff’s, complaint, made at the Onondaga circuit, in January, 1888.
    The action was brought to recover damages for the death of the plaintiff’s intestate, his wife, alleged to have been, caused by the negligence of the defendants.
    The trial court disposed of the case upon the ground there was no evidence for the jury, as to the absence of contributory negligence.
    Upon this appeal, therefore, the plaintiff is entitled to have the evidence considered in a view the most favorable, to him possible.
    The accident occurred in the city of Syracuse, at the-West Genesee street crossing of defendant’s tracks, about two o’clock in the afternoon. The street and tracks crossed each other at an angle of about fifty-five degrees, the street running nearly east and west, and the tracks nearly north, and south. There were three tracks side by side, the most westerly one being the D. L. and W., and the two easterly ones the N. Y. 0. The three tracks were protected by 'gates across the roadway, one east and the other west of' the three tracks. Each gate consisted of two wooden bars, one fixed on either side of the roadway, the bars meeting-in the middle of the roadway, when lowered. The two> gates were operated, each by a separate crank, the cranks being, however, at the same place, which was west of the three tracks, and north of the roadway. A gate tender was kept at the crossing to operate the gates.
    At the time of the accident, plaintiff was driving a team, of farm horses, attached to an ordinary lumber wagon. He sat upon a seat near the front of the wagon, on the right hand side; his wife, the intestate, sat next him on his left, and Mrs. Foley sat at her left, and on the left hand side of the wagon. Mrs. Foley’s son was behind the seat in the-wagon. These people lived in a country town of Onondaga, county. They came into Syracuse early in the day with farm produce for sale, and at the time of the accident were-going out to Geddes, to the house of Mrs. Foley’s daughter. The day was cold and it was cloudy.
    As the team approached the crossing from the east, the gates were down. The team stopped a little ways from the east gate, and a train on the N. Y. 0. track passed by, going from the city, north.
    As this train passed, the gate-tender began to raise the-east gate, and, as the bars went up, the team was started along under the gate to cross the tracks. As the team came upon the N. Y. C. tracks, the people in the wagon first saw a train on the D., L. & W. track approaching "them, coming from the city, north. The gate-tender did not raise the west gate at all. He beckoned the people in "the wagon to drive on across the tracks. Plaintiff was frightened and excited, and he whipped up his team and drove along across the tracks. When on the D., L. & W. track the train struck the wagon and the two women and the boy were killed, and plaintiff himself was more or less injured.
    The two trains were 'going in the same direction pretty fast, and the one some rods behind the other. There was some smoke from the engine of the front train that settled down upon the track behind that train. There was a slight curve towards the east as the tracks approached the crossing from the south.
    The team went to and upon the tracks after the east gate Tvas raised, slowly. The horses were gentle and manageble; the plaintiff was a good driver, and was sober at the time of the accident. The people in the wagon were, to some extent, acquainted with the locality where the accident occurred.
    The railroad tracks all passed over a canal bridge at a point 2,300 feet south of the crossing towards the city. Prom this bridge to the crossing, the tracks were built upon an embankment. There were some houses, trees, etc., obstructing the view of the tracks by persons traveling along West Genesee street towards the crossing. But when forty-one feet easterly from the most. easterly track, there was an unobstructed view of the track south of the crossing for a distance _ of 714 feet, and, approaching nearer the crossing, the view was extended for a further distance south, until before reaching the easterly track, there was an unobstructed view of the whole -2,300 feet of tracks to the canal bridge.
    The bell of the engine on the D., L. & W. train was ringing as required by statute as it approached the crossing.
    
      M. E. & G. W. Driscoll, for app’lt; Jenny, Brooks, Marshall & Ruger, for resp’t, D., L. & W. R. R. Co.; Hiscock, Doheny & Hiscock, for resp’t, N. Y. C. & H. R. R. R. Co.
   Williams, J.

—The features of this case that attract our attention, and specially require our consideration upon this appeal, are the gates and gate tender that were present at the accident, their acts and movements.

If these elements were absent from the case we mignt very readily concur with the trial court in its disposition of it. Because although there are some features aside from these, bearing upon the question of contributory negligence, favorable to the plaintiff; such as two trains following each other so closely, the smoke from the engine attached to the first train settling down upon the tracks behind that train, and the curve in the tracks as they approached the crossing, yet it would be difficult, after considering these features, in the absence of the gates and gate tender and their acts and movements, to account for these people being upon the track, in front of this train, consistently with the absence of negligence on their part.

Just where the team stood, how near the east gate when the first train passed the crossing, and when the gate tender began to raise the bars of the east gate, does not appear; but considering that the team moved along slowly towards the tracks, from the place where it had stopped, and that it had reached the New York Central tracks before the east gate was entirely raised, and before the gate tender had begun to raise the west gate at all, we may conclude the team was standing near the east gate and within forty-one feet of the east track when the first train passed the crossing. In the absence of gates and a gate tender, we should say it was the duty of the people in the wagon, after the first train passed by, and before the team was driven upon the tracks, to look out for any other train that might be coming upon the tracks, and* if there was smoke from the first train which obstructed the view, to wait until the smoke cleared away and the view, was unobstructed; and we should say, upon the evidence, if they had so looked, they would have seen the train, and therefore would have been guilty of negligence in going upon the tracks before it had passed by. The question, therefore, is whether the presence of the gates and gate tender, and the action of the gate tender in raising the bars of the east gate, so far relieved the pórsons in the wagon from the duty to look and listen for the approaching train, as to make the question of their negligence under the circumstances, one of fact for the jury.

In Glushing v. Sharp, Receiver (96 N. Y., 676), the plaintiff drove upon the track of the Long Island Railroad Company in Brooklyn, his team was struck by a passing train, and his horse killed and wagon injured. There were gates, and a gate tender at the crossing. Asjie approached the track he saw a train of cars pass, and the gate tender raise the gates and go into the gate house. At the crosswalk, thirty feet before reaching the track, he looked and saw no train. His view was there somewhat obstructed. He did not look again, though the view for the remaining thirty feet to the track, was entirely unobstructed, and if he had looked he would have seen the train before driving upon the track.

A recovery was had and was sustained by the court of appeals, the court saying: “The claim of the defendant is that the plaintiff should have been non-suited on account of his own carelessness, and this claim he bases upon these facts: That at the place where the plaintiff looked, about thirty feet from the railroad track, his view was somewhat obstructed, and that he did not look again while passing the thirty feet, although during that space his view was unobstructed, and he could have seen the train if he had looked. We think the case as to plaintiff’s negligence was properly submitted to the jury. He looked both ways, and whether under all the circumstances, he should have looked again or continued to look, was for the jury to determine. The raising of the gate was a substantial assurance to him of safety, just as significant as if the gateman had beckoned to him, or invited him to come on, and that any prudent man would not be influenced by it, is against all human experience. The conduct of the gateman cannot be ignored in passing upon plaintiff’s conduct, and it was properly to be considered by the jury with all the other circumstances-of the case.”

In Lindeman v. N. Y. C. and H. R. R. R. Co. (42 Hun, 306; 3 N. Y. State Rep., 731), plaintiff’s intestate drove a team attached to a coal wagon upon the track of defendant’s railroad in the city of Albany, and was killed. There were gates at the crossing, and at the time of the accident, they were open. " It was in the night, and an unobstructed view of the track could be had for seventy-three feet before reaching it. The intestate was seen just before reaching the track to look both ways. The engine was backing slowly towards the crossing, having no light before it.

There was a nonsuit at circuit, which the general term reversed, holding the question of contributory negligence was for the jury, saying: “The defendant insists the intestate could have seen.the engine if he had looked, and was, therefore, negligent as a matter of law. But' he had passed the place before and knew of the gates. He 'saw they were not across the street, and, as said in Glushing v. Sharp, this was an assurance of safety just as significant .as if a gateman had beckoned to him or invited him to-come on. The opening of the gates is an affirmative act, giving every traveller to know that the crossing is safe.. The question of contributory negligence should have been, left to the jury.”

The language quoted above from Glushing v. Sharp, is quoted in full by Judge Danforth in Woodard v. N. Y. L. E.& W. R. R. Co. (106 N. Y., 390; 11 N. Y. State Rep., 169). This was a dissenting opinion, but the court divided in the case four and three.

Applying the rule laid down in these cases to the present case, it seems to me the question of contributory negligence was for the jury, and that the trial court was in error in directing a nonsuit and dismissal of the complaint upon this ground. The object in having these gates and gate-tender was to avoid collisions at this crossing between trains and persons traveling along:' the street with teams. The duty of the gate-tender was to have his gates down across the roadbed when trains were approaching. He was stationed at a place where he had a favorable view of the tracks, and the people in this wagon had a right to suppose, when the gate-tender raised the east gate, that he intended to raise the west gate immediately after, that no trains were coming, and that teams might safely pass over the tracks at the crossing. .Whether they did rely upon this act of the gate-tender, and, therefore, made a less vigilant use of their eyes than they would otherwise have done, to discover whether a train was coming, and whether they were justified in so doing; whether they failed, under the circumstances, in view of the raising of the east gate by the gate tender, to exercise such a degree of care and caution as an ordinarily careful and prudent person would have used, were questions of fact for the jury. The plaintiff testified he did look at various times while approaching the track, but did not discover the train until the team was upon the N. T. C. tracks. It may be doubted whether he looked very carefully, because if he did, he should have' seen the train before he reached the tracks.

The more reasonable conclusion from all the circumstances, would be that these people, seeing the bars of the east gate going up immediately after the first train passed, supposed the gate tender was doing his duty, and that he would not raise that gate if there was any train coming, and that they relied upon the safety in crossing the tracks implied by the raising of the gate. That, therefore, without waiting for any smoke to clear away, or to obtain any very clear or satisfactory view of the tracks to the south, they started to cross over. We should hardly be willing to assume they saw the train coming, and from the first supposed they could get over ahead of it, or that the gate tender saw the train before he raised the east gate. We rather assume that up to the time the team reached the N. T. C. tracks, neither the gate-tender nor the people in the wagon had discovered the approaching train; that then they all discovered it at about the same time, all were frightened and excited, and none of them acted coolly, nor did what would have insured safety to the people in the wagon. The gate-tender could have rushed across the D., L. and W. track, seized the horses by the bits, and kept them back off the track the train was approaching on. He could have made motions to the people in the wagon to keep back. He did not do either of these things, upon plaintiff’s evidence, but stood still, leaving the west gate down so the team could not escape, and yet motioning to-the people to come along over the tracks. So, also, the plaintiff might have stopped his team, backed them up, or turned them 'around and kept them off the track, or all the people could have jumped from the wagon, and in either contingency no one would have been injured. But instead of doing any of these things, plaintiff, obeying the motion of the gate-tender to drive on, or misunderstanding the real _ motion the gate-tender made, supposing it to be a motion to come on, when in fact it was a motion to keep back, whipped up his horses and drove directly upon the track the train was approaching on.

■ If the jury found the people in the wagon were free-from negligence up to the time they discovered the approaching train when the team was upon the N. Y. 0. tracks, then when they first discovered the train they were-in a place of danger, brought there by the negligence of the gate-tender, defendant’s agent, and it was a question for the jury whether, in attempting to extricate themselves-from this danger, being frightened and excited, and not knowing or being able to judge correctly which track the train was upon, they exercised such a degree of care and caution as an ordinarily careful and prudent person would have used. If they did, then they were not negligent,, though they entirely failed to so act, in the sudden emergency, as to insure safety. Sherry v. N. Y. C. and H. R. R. R. Co., 104 N. Y., 652, 656; 5 N. Y. State Rep., 574.

The judgment' should be reversed, and a new trial ordered, with costs to abide event.

• Follett and Martin, JJ., concur.  