
    Augusta Lewin, Plaintiff, v. Lehigh Valley Railroad Company, Defendant.
    
      Negligence — injury to a wife riding in a wagon driven by her husband over a railroad crossing—what effort she should make to see an engine approaching from the rear.
    
    Where a woman, riding in a northeasterly direction in a wagon driven by her husband, in the rear part of which she was seated, facing the east and holding a young child in her lap, upon reaching a knoll from which a crossing made, at an angle of twenty-five degrees, by the highway with a railroad running east and west, is visible several hundred feet distant, warns her husband, who is a competent driver, to look out for the cars, and after reaching a point from fifty to seventy-five feet distant from the crossing, from which the view of the. tracks is unobstructed, looks to the west several times, but sees no train approaching, and does not see any until the horse, which is proceeding slowly, walks upon the track, where the wagon is struck by an engine approaching from the west, she is not, as a matter of law, guilty of negligence contributing to the accident in that she did not turn squarely around and look directly behind her, in such a way as to see the railroad tracks for a distance of 600 or 700 feet west, of the crossing, which was the distance at which the train was visible from the unobstructed portion of the highway.
    Motion by the plaintiff, Augusta Lewin, for a new trial upon a case containing exceptions, ordered to' be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Trial Term.
    The action was commenced on the 16th day of April, 1898, to-recover damages which the plaintiff claims to have sustained by reason of the alleged negligence of the defendant, by which a train of the defendant came in collision with the wagon in which, the plaintiff was riding, at a point where the highway crosses defendant’s railroad in the town of Farmington, Ontario county, Hew York.
    At the place in question the defendant owns and operates a double-track railroad, which extends substantially east and west. The highway upon which the plaintiff was, crosses defendant’s tracks at grade from southwest to northeast, at an angle of between twenty-four and twenty-five degrees.
    On the 9th day of January, 1898, the plaintiff with her husband, a young man, a relative of hers, and her two children, aged three and one-half years and eighteen months, respectively, approached the crossing from the southwest, in a lumber wagon drawn by one horse. Her husband, the young man and the oldest child were sitting in a spring seat on the forward part of the wagon, and the plaintiff’s husband was driving. The plaintiff was sitting on a couch in the back part of the wagon, which was about over the hind axle, holding her youngest child in her lap ; she was facing the east, her back being towards the west.
    When the wagon in which the plaintiff was riding reached the crossing it was struck by an engine on defendant’s railroad, coming from the west. The wagon was demolished, the plaintiff was thrown out, and received the injuries of which she complains.
    
      
      Thomas Raines, for the plaintiff.
    
      George F. Yeoman, for the defendant.
   McLennan, J.:

The evidence is conflicting as to whether the hell was rung or whistle sounded upon the defendant’s engine as "it approached the crossing. The speed at which the train was going is also in dispute, the evidence of the plaintiff tending to show that it was going at the rate of from fifty to sixty miles an hour, and that of the witnesses called by the defendant that it was going at a much less rate of speed.

Upon the evidence it was clearly a question for the jury to determine whether the defendant was guilty of negligence which caused the injury or not. The only other question involved upon this appeal is whether the plaintiff was guilty of negligence which contributed to the accident which resulted in the injuries sustained by her.

The evidence is uncontradicted that in approaching the crossing where the accident occurred, from the southwest, there is a hill or knoll in the highway, several hundred feet from the crossing, at which point the crossing can be seen. The plaintiff testified that when they reached that point she said to her husband who was driving, “We have to cross the railroad track; look out for the cars.” That she was looking and listening at that point, and did not hear or see the train approaching, and that the horse proceeded towards the crossing upon a slow walk, under perfect control; that the horse was gentle and eighteen years old.

After leaving this high ground in the highway, the evidence tends to show that there is an orchard in the angle between the highway and defendant’s tracks, and also a snow fence which tends to obstruct the view of an approaching train from the west as one proceeds along the highway, at least until the traveler reaches a point fifty or seventy-five feet from the crossing, measured along the highway. The plaintiff testifies positively that in going that distance she looked two or three times to the west, and did not see the train approaching, and did not see the train until the horse was walking upon the track.

Assuming that the horse was going at the rate of four miles an hour, when the plaintiff was fifty feet from the crossing the train was more than six hundred feet away, and if the horse was going at a less rate of speed and the train at a greater rate of speed, which might be found upon the evidence, the train was still further away from the crossing when the plaintiff was at the point where it is claimed her view of the railroad was unobstructed. The situation was such ■—■ the angle made by the railroad and the highway — that it is quite evident that the only way the plaintiff could have seen the approaching train was by turning almost squarely around and looking directly behind her. When she looked to the west by turning partly around, she simply was enabled to see across the point of the angle, and could not in that position see the train.

We think that the plaintiff, considering the way she ivas seated in the wagon, the fact that she was holding a young child in her lap, the fact that she had warned her husband, who was a competent driver, that they were approaching the railroad crossing, and the fact that she looked toward the west, as appears by her evidence, upon several occasions while going the fifty or seventy-five feet after passing the point where the view was obstructed by the orchard and snow fence, could not be said, as a matter of law, to have been guilty of negligence in not turning her body clear around, in such a way as to enable her to see the railroad track of the defendant for a distance of six or seven hundred feet west of the crossing. The negligence of the husband, assuming that he was negligent, cannot be imputed to the plaintiff. (Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199; Hennessy v. Brooklyn City R. R. Co., 73 Hun, 569.)

In the case last cited it was said: “ As to the wife, a mere passenger with him in the wagon, she is responsible only for her own neglect, and her right of recovery for injuries cannot be defeated by the negligence of the driver.” This cas'e was affirmed by the Court of Appeals. (147 N. Y. 721.)

In the case of Weldon v. Third Ave. R. R. Co. (3 App. Div. 370) it was held that as it appeared that the plaintiff was taking a gratuitous ride, having no control of the vehicle or the driver, any negligence of Patrick Weldon (the driver) could not be attributed to her. (See, also, Zimmermann v. Union R. Co., 28 App. Div. 445; Bergold v. Nassau E. R. R. Co., 30 id. 438.)

Upon all the evidence and circumstances of this case, we think it clearly was for the jury to determine whether the plaintiff was guilty of negligence which contributed to the injury. (Greany v. Long Island R. R. Co., 101 N. Y. 419; Massoth v. Delaware & Hudson Canal Co., 64 id. 524; Seeley v. N. Y. C. & H. R. R. R. Co., 8 App. Div. 402.)

Our conclusion, therefore, is that the plaintiff’s exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide the event.

All concurred; Follett, J., not sitting.

Plaintiff’s exceptions sustained and motion for a new trial granted, with costs to the plaintiff to abide the event.  