
    Leonard Wiedman, Appellant, v. Erie Railroad Company, Respondent.
    
      negligence — collision between a train and a wagon, the driver’s view from which was obstructed by a high bank of land.
    
    In an action to recover damages for personal injuries, sustained by the plaintiff in a collision with one of the defendant's passenger trains, it appeared that the defendant’s tracks ran through the village of Tonawanda in a northerly and southerly direction, and that Robi nson street in such village crossed the tracks in an easterly and westerly direction; that about five-forty or five-forty-five o’clock on the afternoon of the day of the accident, when it was dark or growing dark, the plaintiff, Who was driving a gentle horse attached to a lumber wagon, started to drive across the tracks from a point about eighty or ninety feet, east thereof; that his horse was walking and that before reaching the railroad tracks he listened and.looked both ways for a train, the last time, when he was within three feet of the first track; that as he got upon the first track a freight train upon the second track moved down towards the crossing; that he stopped and then looked again towards the south and saw a passenger train coming around a curve ata distance of about one hundred and twenty feet; that the headlight on the locomotive was lighted, but that it had given no signal of its approach by bell or whistle; that when it was within fifty feet of him some sharp blasts of the whistle were blown; that he unsuccessfully endeavored to get his horse off the first track and in the space between that and the second track, but that his wagon was struck by the train which was traveling at the rate of eighteen ox-twenty miles an hour, and he sustained the injuries for which he sought to recover.
    Evidence was also given tending to show that the plaintiff’s view of the train which struck him was, to some extent, obstructed by a bank located south of Robinson street and east of the railroad tracks.
    One of the plaintiff’s witnesses, who sometimes drove a hose cart, testified ixpon his cross-examination that he thought the obstructions in question were about seven feet high, and that from the seat which he occupied upon the hose cart, which was so situated that his head was about eight feet above the ground, he could see the top of a train approaching from the south and also the smokestack and headlight upon the locomotive.
    It appeared that the plaintiff was sealed on the lumber wagon in such a manner that his head was six feet above the ground.
    
      Held, that the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence should have been submitted to the jury;
    That, assuming that it would have been possible for the plaintiff to have seen the top of the train and the smokestack and headlight of the locomotive, his failure to do so could not be said to constitute contributory negligence as matter of law;
    
      That the plaintiff was hot to be charged with all the possibilities oí vision and hearing as he approached the tracks, but was bound simply to- make all of the reasonable efforts to see and hear that a careful and prudent man would make under like circumstances.
    Appeal by the plaintiff, Leonard Wiedman, from a judgment of the ■Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 3d day of August, 1900,, upon the dismissal of the complaint by direction of the court after a trial at the Niagara Trial Term, and also - from an order entered in said clerk’s office on the 3d day of August, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      S. E. Filkins, for the appellant.
    
      Adelbert Moot, for the respondent.
   Hiscock, J.:

This action is brought by plaintiff to recover for personal injuries-sustained by him in the village of Tonawanda December 21, -1897, by reason of a collision with one of defendant’s passenger trains,, and which collision it is claimed by him resulted from the negligence'of said defendant in the operation of said train without any concurring or contributing negligence upon luis part. At the close of all of the evidence defendant’s counsel moved for a direction- of a-verdict, and this motion was granted, it not appearing, whether the-same was so granted because of supposed absence of negligence upon the part of the defendant, or of the presence of negligence upon the part of the plaintiff.

Beyond any question or necessity of discussion, the jury; would have been entitled, amongst others, to find the following facts:

The tracks of the defendant run through the village of Tonawanda in substantially a northerly and southerly direction. Robinson street, where the accident occurred, crosses them' substantially in an easterly and westerly direction. Some considerable distance south of the highway crossing is the depot. Commencing from the east, which is the direction from which plaintiff approached' upon' the occasion in question, the' first track was that known as the Lock-port branch, and it was upon this that the accident occurred. Shortly before this track crosses Robinson street from the south it-makes a curve towards the east. The next track was what was known as the scales ” track, and this was about twenty-five feet west of the Lockport branch, from which it divides at a short distance south of the crossing. The next track beyond this was the .main track running through to Niagara Falls, and beyond that was still another track.

The plaintiff, who was a joiner and carpenter by trade, had been_ engaged in connection with his business easterly of defendant’s tracks during the afternoon of the day in question. Sometime after five o’clock he came to Georke’s saloon, which was upon the southerly side of Robinson street and east from the Lockport track between eighty and ninety feet. He stopped there a few minutes, and then about five-forty or five-forty-five started to go home across the tracks in question. He was driving a lumber or democrat wagon with one horse attached. The horse was a gentle one. The plaintiff sat upon a board laid across the box of his wagon, the seat being about four feet from the ground and plaintiff’s head about six feet therefrom. He had in his wagon some tools and other things which may have made some noise. As he approached the tracks his horse was upon a walk. Twice between Georke’s and the railroad tracks he listened and looked both ways for a train; the last time being when his horse was within about three feet of the Lockport track. It-was dark or growing dark. As he approached the tracks he heard an engine somewhere off the crossing letting off steam. As he got upon the Lockport track a freight train upon the scale ” track moved down upon or towards the crossing and he stopped. Just then, looking again towards the south, he saw, the passenger train which struck him coming around the curve at a distance of perhaps ■one hundred and twenty feet. Its headlight was lighted, but it had given no signal of its approach by whistle or bell. When it was within perhaps fifty feet of him it gave some sharp blasts of the whistle. He endeavored to get his horse off the Lockport track and in between that and the “ scale ” track so as to avoid a collision, but was not successful, his wagon being struck and he being injured. The passenger train was going at the rate of eighteen or twenty miles per hour.

As stated, there can be no doubt but that a jury would have been entitled to find all of the aforesaid facts. Some of them, notably the alleged failure of the defendant to give signals of the approach of this train and the rate of speed, were disputed. But the issues thus raised were fairly within the province of a determination by the jury.

We come now to the .discussion of an alleged obstruction to the view of defendant’s train formed by a bank situated in the angle south of Robinson street and east of the Lockport track. The extent of this obstruction is very largely decisive of the question, both of 'defendant’s negligence and plaintiff’s freedom from negligence, and the defendant insists strenuously that upon all of the evidence it was not of such a nature as to permit the jury to find in favor of the plaintiff upon those questions.

This bank (referring especially to the evidence of the plaintiff and one Barrally, a civil engineer, and one of plaintiff’s witnesses), west of Goerke’s saloon and towards the railroad track, was between four and five feet above the level of the roadway of Robinson street, becoming higher as one went westerly towards the railroad track, the highest point being ten or fifteen feet from the track. It extended to within eight or nine feet of the track and then sloped down some. On top of this bank, between the saloon and the track, was an outbuilding fifteen by nine feet, some trees and a, thick growth of brush or weeds from two to four feet high, which continued about the entire space.

The witness Barrally, in answer to the questions of defendant’s counsel, éxpressed the opinion that, these, trees or hushes would SO' interfere with seeing down the track towards the direction from which défendant’s train was coming as to have prevented plaintiff from seeing the train upon the occasion in question until it got within a very short distance of the crossing. One of plaintiff’s witnesses (Gust), who sometimes drove a. hose cart, testified, upon his cross-examination by defendant’s counsel, that he could see the top of a train, the smoke stack and headlight upon a train, coming as the one did in question, when he got by Goerke’s saloon; that he thought the obstructions in question were about seven feet high, but that upon the seat which he occupied upon the hose cart his, head was about eight feet above the ground.

Plaintiff swears directly and positively that this bank and obstructions upon the night in question did prevent him from seeing the approaching train; that he .looked twice before he got upon the track and did not see it. There is much other evidence upon this subject both by plaintiff and by deféndant; that upon the part of the latter, both through the oral evidence of witnesses and in the form of photographs and measurements, tends to belittle and minimize the extent of this obstruction. It is claimed, however, apon the part of the plaintiff, that between the time of the accident and the time of the making of the photographs and measurements, this bank had been cut down more or less in the neighborhood of the tracks and that the photographs do not adequately or fairly represent the extent of the obstructions as they were at the time of the accident.

Taking all of the evidence, we think it made a question for the jury whether the plaintiff, in the exercise of that degree of diligence and caution which the law imposed upon him as he approached the track, ought to have seen and known of the approach of the train in time to have avoided it.

Even if we should disregard the other evidence given in behalf of plaintiff, and assume that it would have been possible, looking across this bank, to see the smoke stack, headlight and top of a train approaching the crossing, we should not feel inclined to say as matter of law that, under all of the circumstances which surrounded plaintiff’s approach, he was guilty of contributory negligence for not having so seen said train and avoided it, or that defendant was. free from negligence.

It has been held (Henavie v. N. Y. C. & H. R. R. R. Co., 166. N. Y. 280) that a railroad company which runs a locomotive rapidly in the night time upon a public street over a grade crossing without any other signal of its approach than a headlight, may be found guilty of negligence, and that a person coming into collision with such train need not as a matter of law be held guilty of contributory negligence, even though lie saw such headlight.

Neither should it be held that plaintiff,, especially under the conditions of dusk or darkness prevailing at the time of the accident, was guilty of contributory negligence because he did not see over this obstruction the top of defendant’s approaching train, assuming that he could so have seen it. Plaintiff is not to be charged with all of the possibilities of vision and hearing as he approached the track. He was not bound to see or provide against any certain result. He was bound simply to make all of the reasonable effort to see and hear that a careful and' prudent man would make under like circumstances. (McPeak v. N. Y. C. & H. R. R. R. Co., 85 Hun, 107, and cases cited.)

But, in our judgment, we are not entitled to assume in disposing of the question now before us that what the witness Gust said he could observe at a height of eight feet from the ground was open or possible to plaintiff as he approached. His head was two feet lower than that, and we have the evidence of one or more witnesses besides plaintiff tending to show that the obstructions in question were more than six feet high and that with the plaintiff thus located it was not possible to see the approaching train until it got. near to the crossing. In addition to that, we have the absolute^ positive testimony of plaintiff that at least twice as he approached he did look towards the- direction from which this train came and was unable to see it until too late to avoid the accident. It has been held in stronger cases for the defendant than this one that such evidence is of great weight in establishing the status of plaintiff and in determining whether a jury shall be allowed to pass upon his conduct. (McPeak v. N. Y. C. & H. R. R. R. Co., supra ; Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. .402; Stever v. N. Y. C. & H. R. R. R. Co., 7 id. 392.)

Especial reference has been made upon the trial to the fact that plaintiff testified that he was unable at first to distinguish whether the approaching train which hit him was upon the Loekport track or upon one of the other tracks, and from this it is asked that the inference be drawn that he negligently subjected himself to the risk and chance of the train being upon another track, and that, therefore, he cannot recover. We do not, however, find any evidence which justifies this conclusion, or which indicates that' plaintiff, in reliance upon the train’s being upon another track, neglected to do anything to escape -from the collision in question.

Drawing in behalf of plaintiff, as he is entitled to have on this appeal, the most favorable inferences deducible from all of the evidence, and having in mind that all disputed facts are to be treated as established in his favor, we think that lie was entitled to lave the case submitted to the jury, both upon the question of defendant’s negligence and his freedom therefrom, and that to refuse him such privilege was an error for which the judgment and order appealed from must be reversed.

All concurred.

Judgment and order reversed, and new trial ordered, with costs to the appellant to abide the event.  