
    Robert Young, Resp’t, v. The New York, Lake Erie and Western Railway Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 6, 1887.)
    
    Negligence — Contributory negligence — Railroad — Duty op one CROSSING A RAILROAD.
    The defendant’s railroad crossed a certain street on the level. There was a freight train standing upon the south track headed east, which had been cut in two at said street, leaving a space for the passage of persons and teams. The plaintiff, a foot passenger, while crossing from the south was struck and injured by a train going west on the north track. There was, at the time, a brakeman upon the south track in or near the opening between the two parts of the standing freight train, but he was not placed there to warn travelers and gave no warning to plaintiff, who was not aware that he was a brakeman. The plaintiff did not look, after passing the freight train, to see if the north track was clear. Held, that he was guilty of contributory negligence. That the presence of the brakeman did not excuse him from looking out for his own safety.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment entered upon the verdict of a jury in favor of the plaintiff and an order denying a motion for a new trial upon the judge’s minutes.
    
      O. W. Chapman, for app’lt; S. C. Millard, for resp’t.
    
      
       Reversing 35 Hun, 663, mem.
      
    
   Earl, J.

This action was brought to recover damages for injuries received at a railroad crossing. The defendant’s railroad passed east and west through the city of Binghampton with two tracks, and Oak street passed north- and south intersecting the railroad. The south track was used for eastward bound trains and the north for westward bound trains, and the space between the two tracks was-about seven feet. The accident occurred about fifteen, minutes after six o’clock p. m. on the 24th day of August, 1881, before sundown on a clear day. There was a freight train standing upon the south track headed east, which had been cut in two at Oak street, leaving a space of about-twenty feet for the passage on the street of persons and teams. The plaintiff going north in the centre of the street-passed through this space, and just as he stepped upon the-north track was hit by the engine going west and was-badly injured.

There was conflict in the evidence as to the defendant’s-negligence, and since the verdict of the jury it must be-assumed that, that was sufficiently established. But there' was no conflict in the evidence as to the material facts bearing upon the plaintiff’s contributory negligence. He was in possession of all his faculties, on foot, entirely unincumbered, with nothing to attend to but his own safety. There is a great preponderance of evidence that be could, not have seen the train for at least one-third of a mile before it reached Oak street, while he was passing over a space of about sixty feet, until he came within about fifteen feet of the south track of the railroad. But the plaintiff testified that he looked while passing over that space and did not and could not see the approaching train, and we must therefore take the fact to be that he could not have seen the train until it had passed over, or nearly over, the-south track. The north track was straight for at least half a mile toward the east, and the moment the plaintiff got upon the middle of the space between the two tracks he could have seen a train approaching from the east for that-distance.

He was walking very rapidly, perfectly familiar with, the location and the use which was ordinarily made of the two tracks, and as he crossed through the opening between the parts of the standing freight train, instead of looking-east from which a train would ordinarily come on the north track, he looked to the west and heedlessly stepped immediately in front of the engine. As he passed over the north rail of the south track, a single glance to the east would have disclosed to him the approaching train, and he would have escaped injury. He was in a place of some peril in crossing these tracks, and should have taken some care-to protect himself. .He was in no danger from the train on the south track, as that was- stationary. If thát, to some extent, obstructed his view upon the north track, there-was so much the greater reason for him to take an observation the moment he had crossed the south track so as to see whether he could cross the north track with safety, and. for not doing so, he is charged with contributory negligence, which bars his recovery. Cordell v. N. Y. C. and H. R. R. Co., 75 N. Y., 330; Woodard v. N. Y. L. E. and W. R. R. Co., 106 id., 369; 11 N. Y. State Rep., 169; Davey v. London and S. W. R. Co. (L. R.) 11 Q. B. Div., 213, S. C., affirmed in court of appeals, 49 L. T. Rep. (N. S.), 739.

But there is a circumstance to which the trial judge attached some importance, but for which, as we must infer from the language of his charge, he would have non-suited the plaintiff, to which we must now call attention. There was a brakeman upon the south track in or near the opening between the two parts of the standing freight train. The evidence on the part of the defendant is that the brakeman warned the plaintiff. The evidence on the part of" the plaintiff tends to show that the brakeman said nothing and made no sign to the plaintiff, and we must assume his evidence to be true. But it does not appear that the brakeman was stationed there for the purpose of warning travelers upon the sti’eet of the approach of trains upon the north track, or in any way for the protection of travelers. He was there simply for the purpose of connecting the two parts of the train when he-should be signaled to do that, and hence he omitted no duty resting upon him in not warning the plaintiff. It does not appear that the plaintiff knew he was a brakeman, or that he understood that he was standing there to warn travelers-upon the street, or that he supposed that he owed him any duty whatever. And it does not appear that the plaintiff" relied upon him for protection, that he was lulled into a. sense of security by the absence of any warning or that-his conduct was in any way influenced by his presence-there. The plaintiff passed on through the opening, apparently giving heed to nothing, at a rate of speed characterized by the trial judge as almost approaching a run.”

.It is, therefore, impossible to perceive how the presence-there of the brakeman relieved the plaintiff from the duty of the vigilant use of his senses to secure his own safety. If the brakeman had in any way invited the plaintiff to cross or had given him any assurance that it was safe to-cross, the case would be different. The case would, also, be different if the plaintiff had known that the brakeman was placed there to warn travelers of the approach of trains, and if, as he approached, the brakeman seeing him had given him no warning, it may be that in such a case it would have been a question of fact for the jury to determ-' inc whether or not the plaintiff was guilty of negligence in crossing without looking for himself to see whether a-train was approaching. It was, however, after great consideration held otherwise in the case of Davey v. The L. & S. W. Railway Co. (supra), which is singularly like this. There the defendant’s railway crossed a public foot-way on the level. The plaintiff, a foot passenger, while in the day time crossing from the down side to the up side of the railway was knocked down and injured at the crossing by a train of the defendant’s, on the up line. Owing to the position of certain buildings which stood by the line it was impossible for any one crossing from the down side to see .a train coming until he got within a step or two from the down line, but a person standing on the down line or the six foot, had a clear and uninterrupted view up and down the line several hundred yards. The plaintiff stated that before crossing he looked to the right along the down line, but he admitted that he did not look to the left along the up line, and that if he had looked he must have seen the train coming. The engine driver did not whistle. There was a servant of the company employed as a gate-keeper at the crossing standing near the crossing, but he gave no warning to the plaintiff that a train was coming. The plaintiff was non-suited, and the court held, among other things, that the presence of the gate-keeper who gave no warning did not excuse the plaintiff from looking out for his own safety.

We are, therefore, of opinion that the plaintiff should have been non-suited, and hence the judgment should be reversed and a new trial granted, costs to abide event.

All concur, except Danforth, J., dissenting, and Sapallo, J., absent.  