
    Swift & Company, Appellant, v. New York and Queens County Railway Company, Respondent.
    Second Department,
    December 30, 1909.
    Railroad. — negligence — collision with lighted vehicle — right to drive on tracks — when contributory negligence immaterial — wanton recklessness — when dismissal of complaint improper.
    A driver of a vehicle is not guilty of contributory negligence in driving on the tracks of a railway laid on the public highway when the icy condition of the other parts of the road compel him to do so.'
    Where a plaintiff, having .looked for approaching cars, drove upon the track of a railway overlaying the public highway owing to the impassable condition of other portions of the highway, and was struck at night by a car approaching from behind, it is error to set aside a verdict in his favor and to dismiss his ' complaint, where the defendant gave no evidence and it appears that a lighted lantern, plainly visible, was suspended from the rear axle of the vehicle.
    This is true even .though the plaintiff be deemed guilty of contributory negligence in failing to continue to look behind, for contributory negligence will not defeat a recovery for an in jury.caused by wanton .recklessness.
    Where the plaintiff was entitled to go to the jury on the question of defendant’s negligence, the court, on setting aside a verdict in his favor, should not have dismissed the complaint even though he did not ask that the defendant’s negli.gence be submitted to the jury.
    Appeal by the plaintiff, .Swift & Company, from a judgment of the Supreme Court in favor, of the defendant, entered in the office of the clerk of the county of Queens on the 7th day of April, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, the verdict of a jury in favor of the plaintiff being set aside, and also from an order entered in said clerk’s office on the 10th day of April, 1909-, granting the defendant’s motion to set aside the verdict of the jury.
    
      Joseph M. Hartfield, for the appellant.
    
      Bayard H. Ames {John Montgomery and James L. Quaolcenbush with him on the brief], for the respondent.
   Thomas, J.:

In the night plaintiff’s servant was driving horses on an open wagon from Astoria to Flushing, and the icy condition of the road constrained him to drive on one of the two street railroad tracks that bordered the road. As he entered upon the track he looked back, but no car was in sight. He drove 300 feet and looked again, arid did not look again while he was driving a mile and a half on the track, which he estimated in time to be seven or eight minutes. The person riding with him looked back five or six minutes before the collision. Neither heard the car approaching. There was a lighted lantern tied by a string to the rear axle. The jury found a verdict for the plaintiff, which the court set aside, and dismissed the complaint upon motion for a nonsuit, decision whereof was reserved pending the verdict. The motorman drove liis car upon the wagon in the very face of a lighted lantern swinging from its rear axle, and the plaintiff was at least entitled to go to the jury upon the question whether the defendant’s negligence in this regard was not the sole proximate cause of the accident. The defendant gave no evidence, and for aught that appears the motorman saw the lantern at such distance therefrom and under such circumstances that in the exercise of good faith he could have stopped the car, the failure to exercise which would charge him with gross negligence. This case differs from any to which my attention has been called, (1) by the presence of the light at night, which was a self-protection employed by the driver and an unmistakable signal to .the motorman of the presence of the wagon on the track; (2) by the fact that the motorman gave no account of himself whereby he may be acquitted of gross negligence in running down the team. There is no phase of • negligence law that ignores this consideration. Had the driver been a trespasser', on the tracks of a steam railway, the duty would rest on the engineer of a train seeing him to try. to save him. But here the driver was on a public highway where by immemorial right he .might travel, he was on tracks that overlaid a space in the highway where he had every right to go, and where the icy condition of other parts of the highway compelled him to go. If he did not keep his eyes turned backward with sufficient continuity, or so repeatedly as to accotnmodate his safety to the defendant’s cars, that did not excuse the defendant’s presumable reckless oncoming with the lantern shining full in the face of the motorman. The law is mindful of cattle trespassing on a railway track. (Whart. Neg. § 397.) It takes heed of human beings heedlessly exposed there. (Kenyon v. New York Central & Hudson River R. R. Co., 5 Hun, 479; affd., 76 N. Y. 607.) There it was decided that in an action for injuries to a little child from being run over by defendant’s engine, the driver might, with the exercise of ordinary care, have stopped the engine and avoided the injury; hence the contributory negligence of the plaintiff did not constitute a defense. In the opinion it is said : Such a case furnishes a just and well-established exception to the generahrule that contribntive negligence on the part of the plaintiff will defeat a recovery,” citing many authorities. In Radley v. London & North Western R. R. Co. (L. R. 1 App. Cas. 754, 759), it was held that although .the plaintiff may have been guilty of negligence that may, in fact, have contributed to the accident, if the defendant could, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him. It is not the law that a railway company may, with knowledge, yet without effort to save, fun down any valuable animal, much less man, upon railway tracks, however unlawfully or however negligently they may be there. It is true that the care required of an unoffending person to avoid injuring a negligent person, when his dangerous condition presents itself, is quite different from that primarily imposed. The innocent person so called upon to act may find the other in an extremity of danger solely through his own negligence, so that an attempt to deliver him, made in good faith, may be all that is required. In the case at bar the defendant’s motorman could have seen the lighted lantern in its track a long way aheadthe law required him to watch the track for teams on the track; the light was drawing nearer to his vision, and the presumption is that looking as he ought to have looked he saw it and dashed into it. Burdened by this presumption the defendant refused to spéak in explanation. The explanation might have demanded its exculpation by the court; but' as the case stands it is not shielded, but rather exposed to the- accusation of seeing danger to another and disregarding it, although the motorman is presumed to have his car under reasonable control, and for aught known did so have it. But it may be said that the plaintiff failed to make request for submission of such question to the jury, and so he did, and for that reason the question was not presented, and the court set aside a verdict based on other issues. But the plaintiff’s failure to present such question to the jury did not justify the dismissal of the complaint, inasmuch aS' the plaintiff was entitled to go to the jury on that question.

I think that the order dismissing the complaint and judgment thereon should be reversed, and that as the entire question was not submitted to the jury the order setting aside the verdict should be affirmed, and a new trial granted,' costs to abide the event.

Hirsohberg, P. J., Woodward, Jenks and. Miller, JJ., concurred.

Judgment and-order reversed and new trial granted, costs to abide the event.'  