
    (69 Hun, 429.)
    SAUERBORN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Railroad Companies—Failure to Give Signals at Crossings.
    In an action for personal injuries caused by collision with a train at a. railroad crossing, it is a question of fact for the jury whether the failure of defendant to ring the locomotive bell or to blow the whistle was-negligence.
    Appeal from circuit court, Schenectady county.
    Action by Nicholas Sauerborn, as administrator of Kate M. Sauerborn, deceased, against the New York Central & Hudson-River Railroad Company, for causing the death of plaintiff’s intestate. (From a judgment in favor of plaintiff for $4,178.71, damages and costs, and from an order denying a motion for a new trial, made on the minutes of the judge, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    S. W. Jackson, for appellant.
    Daniel Naylon, Jr., (Alonzo P. Strong, of counsel,) for respondént.
   PUTNAM, J.

The legal questions involved in this case have been so often considered that we deem an extended .discussion unnecessary. The appellant contends that the judgment cannot be sustained, because plaintiff failed to show the absence of contributory negligence on the part of the deceased, and also because of certain exceptions to the charge of the trial judge and his refusal1 to charge. It is well settled that it is only in exceptional cases that a nonsuit can be granted on account of the contributory negligence of the party injured. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury. Massoth v. Canal Co., 64 N. Y. 529. We have carefully examined and considered the testimony in the case, and are of opinion that this was not one of those exceptional instances where the trial judge could properly have withdrawn the question as to the contributory negligence of deceased from the jury. There was evidence tending to show that Miss Brown and deceased, when approaching the track where the accident occurred, exercised unusual care, stopping twice, listening and looking, up to the time the wagon wheels reached the track. Also there were freight trains on tracks 3 and 4, one going east and the other west, which obstructed the view easterly. This testimony, in connection with other evidence in the case, rendered it probable that deceased was not guilty of negligence in failing to observe the passenger train on track Mo. 2, which caused her death. The question was not whether the deceased could have seen said passenger train, but whether, under the circumstances, she was negligent in not seeing it. Greany v. Railroad Co., 101 N. Y. 424, 425, 5 N. E. Rep. 425. After they reached the railroad tracks it cannot be deemed as matter of law negligence on the part of Miss Brown to attend to her horse while driving over them. Moore v. Railroad Co., (Super. Buff.) 21 N. Y. Supp. 436. Besides, the evidence indicated that while they were so crossing deceased was looking for approaching trains.

It is claimed that the court erred in charging the jury that deceased was not responsible for the same degree of care as was Miss Brown, because she was a guest. The charge in this regard we think correct. The judge said:

“Here was a four-track road, and it behooved them to take extraordinary pains to prevent being on the track at the time when a train was going along, and thus prevent a collision. Miss Sauerbom had the duly imposed upon her to aid her companion in all ways a person riding in a vehicle should do, by looking and by suggestion, and by assistance to prevent any injury to either of them by a collision with a train.”

The instructions given, as a whole, were unobjectionable. See McCaffrey v. Canal Co., (Sup.) 16 N. Y. Supp. 495. The charge in regard to defendant’s failing to ring the bell or blow a whistle was not erroneous. The jury were instructed that as a matter of law it was not negligence to omit these signals. It was submitted to the jury as a question of fact whether, under all the circumstances of the case, such signals should have been given by the defendant. The defendant was not, we think, entitled to have the jury instructed, as a legal proposition, that the failure of the defendant to ring the bell or blow a whistle when approaching the crossing where deceased was killed would not constitute a wrong or negligence of the defendant. Whether it would or not was a question of fact ■for the jury.

The judgment should be affirmed with costs.' All concur.  