
    Sarah C. L. Read, as Executrix, etc., of Frank B. Read, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    January 10, 1908.
    Motor vehicle — collision at railroad, crossings contributory negligence of passenger.
    Although a passenger in an automobile is not chargeable with the contributory negligence of the driver, he is nevertheless guilty of contributory negligence as a matter of law, if being a niale thirty-six years of age, in full possession; of his faculties, he fails to look and listen at a railroad crossing to ascertain whether or not a train is approaching, he being seated on the rear seat of the vehicle in a position from which he would have seen a train which.struck the vehicle had he looked at any time while the train, was Covering a distance of 2,.000 feet from the point of .collision, and an exclamation from him would have'sufficed to' cause the chauffeur to stop in time to avoid the accident.
    The duty of a passenger in an automobile to look and listen,at a railroad crossing is governed by age, sex and position in the vehicle.
    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, entered in the office of the clerk of the county of New York on the 21st day of. June, 1907, upon the verdict of a jury for $101,789.10, and also, from an order entered in said clerk’s office-bn the, 19tli day -of. June, 1907, denying the defendant’s motion fór a new trial made upon the minutes., '
    
      Alton B. Parker, for the appellant.
    
      George W. Weiffenbach, for the respondent.
   Ingraham, J.:

The plaintiff’s testator lost his life as the result of a collision between an, automobile iii which he was riding and one of the trains of the defendant railroad at the crossing-near Van Cortlandt Park in the city of New York on the 12th day of June, 1904. The facts are stated in the case of Noakes v. New York Central & Hudson River Railroad Company (121 App. Div. 716), which was an action by a passenger in this same automobile who was injured at the same time. The chauffeur operating the autómobile at the time of the accident testified that the automobile crossed a bridge from 175 to 200 feet from the defendant’s tracks from which lie could see the railroad tracks to the south for a distance of about 2,000 feet; that he looked towards- the south when he was at the bridge to see if there was a train coming from Hew York, but saw none;' that he then proceeded very slowly on an upgrade to the tracks; that about 25 to 30 feet from the - tracks there is a steep grade and the road was crowded with people; that the automobile was proceeding slowly through the crowd towards the track; there was a train that had stopped north from the.crossing at a water tank; that the automobile continued towards the track and just as its front wheel was on the north-bound track all at once the crowd opened up with a shriek and fell to one side, and I just turned my head quick that way (illustrating) and I saw there was a train approaching from the south and immediately like that it struck that. When I first noticed it, as well as I am able to judge, I think it was about perhaps 400, 300 or 400 feet, or something of that sort from bur car; I don’t kftow just how far, but as well as I am able to judge, about that distance. * * * I saw no train until then. I looked quickly then and 1 saw that there was a train coming. * * * When I first saw that train, I turned on all the power I had, but it was so sudden that the engine wouldn’t take it, of course. * * * The first time I looked for the train I was at that bridge. The second time that I looked for the train was just as I started up this little incline, this other additional rise. I was, I should say, about 25 feet or something like that from the nearest rail the last time I looked along the track. When I was 25 feet from the rail I looked for the train, and saw none and then proceeded to cross. * * * The auto was going very slow across the tracks; I was just about moving. I reached the point where I saw this approaching train 400 feet away and turned on speed and attempted to accelerate my speed.” On cross-examination the witness said that he could see all parts of the railroad tracks between the bridge and the highway crossing at the station and that there was nothing to obstruct his view; that no one had given him any warning of the coming of the train from the south; that Mr. Read (deceased) did not give him any warning or . call his attention to the train coming; nor did any one else in. the automobile give him any warning. Mr. Noakes, the owner of the automobile and who was on the front seat with the chauffeur,; testified that he did .not look either way for tlie trains and saw no train coming from the south; that lie did not know that he had had an' accident until he regained consciousness. Upon the barik seat of this automobile was Mrs. Noalces- who was seated on the west- side of the back seat, Miss Noakes was seated next to her mother in the .middle and the deceased was seated on the right side of the-automobil.e towards the direction from which the train which caused the accident was coming. Mrs. Noakes testified that as the automobile ■ approached the crossing she did not see a train on the south-bound track and that the first that she -saw of the train was when they were almost across the tracks about six feet away from the approaching train ; that they were all apparently looking ahead; that thédqceased was talldng-and laughing just before the accident with her daughter ' who. was seated between them. Miss Noakes testified that she did not remember much about the accident and did not see any train on the track-before she was struck; that she remembered seeing the number on the engine when it was right opposite her; that was all she remembered; that shé did riot remember wliat the deceased was doin g at "about the time they started to cross the track. There was a station just to the nortlrof this crossing at which the. approaching train was to stop. " .

In the Noakes case we sustained the judgment upon the ground ' that the age, sex and situation of the plaintiff in that.case, a girl of sixteen .years of age,-seated between her mother and the. deceased, made -it a question for the jury as to whether she was negligent in not.looking and seeing the train and warning the chauffeur to stop the automobile before it was upon the track. It was expressly stated' that the age, sex of the plaintiff, the situation in which she was placed, and the surrounding circumstances Were such that a question was presented as to whether it was negligence for the plaintiff not to look, which was for the jury, and the case was riot one of those which- imposes an absolute.duty upon a passenger' in a. vehicle of looking and listening for an approaching train, a violation of which is, as matter of law, contributory negligence. We have in this case a man thirty-six years of age seated on the back seat, of an autotaobile on the side of an approaching train. For a distance of from 175 to' 200 feet he had an unobstructed view of 2,000 feet of the railroad trade. When the automobile in which he was a passenger approached the track, the deceased was talking and laughing with, a fellow-passenger on his left away from the approaching train. He was acquainted with the locality, as the automobile had crossed the tracks a short time before. The automobile was proceeding very slowly, and the jury would have been justified, in finding that a word, to the chauffeur would have caused him to stop the automobile and the accident would have been avoided. It was certainly contributory negligence to place this'automobile immediately in front of a rapidly approaching train where there was nothing to obstruct the view or to prevent those in the automobile from seeing the approaching train, and while the deceased was not chargeable with the negligence of the chauffeur, it was his duty to look and listen for approaching trains when he was approaching the track, although a passenger, and to prevent so far as lie could- the chauffeur from crossing in front of the train, and a failure to perform that duty is contributory negligence. (Gorton v. Erie R. Co., 45 N. Y. 660; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 424; Dolfini v. Erie R. R. Co., 178 id. 1; Keller v. Erie R. R. Co., 183 id. 67.)

The duty imposed upon the deceased requires that he should look and listen before the vehicle is placed in a position that an accident would result if a train is approaching, and a failure to perform that duty is contributory negligence that relieves the defendant from liability. (Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199; Brickell v. N. Y. C. & H. R. R. R. Co., 120 id. 290.) The special circumstances that existed in the Koakes case which we thought justified the court in submitting the question of contributory negligence to the jury, namely, the age and sex of the plaintiff who was injured, did not exist in this case, as here the deceased was a man thirty-six years of age, in full possession of his faculties and seated in the automobile on the side from which the train was approaching. There is certainly nothing, either in his age or sex or in the position in which the deceased was seated, that excused him from the performance of the duty which the law imposes upon every person approaching a railroad track of taking such measures as may be necessary to ascertain whether qr not a train is approaching at such a distance as would make it dangerous, to cross the track in front of it. There is not only no evidence that the deceased did look or listen, but the evidence of those in the automobile with him negatives such a conclusion. He was talking and laughing with a fellow-passenger upon his left, and it is apparent that if he had looked at any time while the train was .covering the 2,000 feet from the point at which it was visible from the crossing he must have seen the train, and an exclamation would have caused the chauffeur 'to stop and thus the accident would have, been avoided'. It being the duty of the deceased, although a passenger in the automobile, to look or listen to ascertain whether or not a train was approaching before crossing the track, and a failure to perform that duty being contributory negligence, the failure of the deceased either to look or listen to ascertain whether a train was approaching or,, if he did see an approaching train, his not taking any means to have the automobile stopped or avoid the accident, establishes affirmatively that he was guilty of contributory negligence and a judgment in favor of his representatives cannot be sustained. Sherwood v. N. Y. C. & H. R. R. R. Co. (120 App. Div. 639) was an action'by the representatives of a boy sixteen years old who was killed by a collision' between one of the defendant’s trains and an . automobile in which he was riding. A judgment for plaintiff was sustained upon the ground that considering the age of the boy it was a question for the jury whether under all the circumstances the deceased conducted himself as a lad of his age ordinarily Would, and the court held that the jury were justified in finding that the plaintiff’s intestate, used all the care which an ordinary lad in his circumstances would have- exercised, and that he was not chargeable with contributory negligence as a matter of law, a position analogous to that in the Noakes case, but which has no application to the case at bar.

I think, therefore, that the "judgment and order appealed from must be reversed and a new trial ordered, with costs to' the appellant to abide the event.

Patterson, P. J., Laughlin, Clarke and Scott, JR, concurred.,

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