
    William C. Keller, as Administrator de Bonis Non of the Estate of Daniel Keller, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    
      Negligence—a railroad company permitting people to cross its tracks at a place not a public crossing must give warning of the approach of its trains—when a pedestrian is negligent in crossing the tracks when, a train is within his view — obscuration of the view with smoke — noise of another approaching train.
    
    A railroad company, which, each day for many years, has, without protest or hindrance, permitted hundreds of pedestrians to cross its tracks at a point which is not a regular public crossing, is required to give some warning of the approach of its trains for the benefit of the pedestrians thus crossing its tracks.
    Where, in an action brought to recover damages resulting from the death of the plaintiff’s intestate, who was struck and killed while he was crossing the defendant's railroad tracks by an east-bound train, which had given no signal of its approach, it appears that the deceased was very familiar with the surroundings and that for a distance of thirty-six feet along the course taken by him he had an uninterrupted view to the westward of five or six hundred feet, a judgment entered upon a verdict in favor of the plaintiff should be reversed, notwithstanding that there was evidence tending to show that the noise of the east-bound train was drowned by a passing west-bound train, and that the view of the east-bound train was obscured by steam and smoke from the west-bound train. These circumstances only increased the degree of diligence which the deceased was called upon to exercise before crossing the east-bound track.
    Appeal by the defendant, the Erie 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 Erie on the 4th day of February, 1904, upon the verdict of a jury for $9,500, the plaintiff having stipulated that the verdict of $14,000, as originally rendered, be reduced to $9,500, and also from an order entered in said clerk’s office on the 4th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes, on condition that the plaintiff agree to such reduction in the verdict.
    
      Adelbert Moot, for the appellant.
    
      J. H. Metcalf, C. M. Bushnell and Frederick G. Bagley, for the respondent.
   Spring, J.:

The plaintiff’s intestate while returning homeward from his work shortly after five o’clock in the afternoon of March 25, 1902, was struck and killed by an engine running backwards, and drawing a freight train on the defendant’s road. The plaintiff was a mechanic working in Kams’ malt house on Hertel avenue in the city of Buffalo. In this part of the city a large number of men were employed who were in the habit of crossing defendant’s tracks in going to and from their work. Hertel avenue is an easterly and westerly street. It is crossed west of Kams’ malt house by a Y track of the Central railroad. This Y consists of a double track running on a curve in a southeasterly direction and crosses the defendant’s road, which also consists of two tracks running in an easterly and westerly direction at the junction. Immediately south of the Erie and parallel with it are two more tracks of the Central. In the apex of the angle formed by the union of the Y Central tracks with those of the defendant there was at the time of the accident a pile of stones about forty-six feet long and varying in height from five feet to over seven feet.

The land between the tracks of the Erie and Hertel avenue in this vicinity is open marshy unoccupied territory and substantially level. There is no street between Hertel avenue and the defendant’s tracks near the point of the junction with the road of defendant, but south of the parallel tracks of the Central are several streets which are occupied by these workmen among others.

The men employed in the malt house and the other establishments in this locality were accustomed to walk along the Y tracks and pass over them at about the junction already mentioned. There were several beaten paths across the uncultivated land between Hertel avenue and the tracks of the defendant which converged about the point of junction, and these were also made by the workmen. Two or three hundred men a day were in the habit of passing over these tracjcs and fifty or sixty at a time were not an unusual number composing the procession which used the defendant’s tracks as well as those of the Central road for this purpose, and principally at this point.

Keller, the plaintiff’s intestate, with Gauger and Rose, fellow-workmen, left the malt house about five o’clock in the afternoon and walked along the Central Y tracks toward the junction. It was daylight and a clear day. The distance along the Y from Hertel avenue was six hundred and twenty feet. As they came along by the stone pile a train consisting of twenty to thirty freight cars on the northerly of the Central tracks was going west. The men crossed over the northerly of defendant’s tracks and Keller and Rose were struck by a freight engine going east on the southerly of these tracks of the defendant.

This train consisted of about twenty or twenty-five cars drawn by a Mother Hubbard engine with tender ahead and running eighteen or twenty miles an hour. The proof fairly showed that no signals or warning were given of the approach of this train.

We think that the use of the defendant’s tracks at this point by pedestrians had been so general, notorious and long continued that the defendant can fairly be said to have acquiesced in that user. It was, therefore, incumbent upon the defendant to give some warning of the approach of its trains at this junction for the benefit of these licensees. The existence of this obligation was especially impressive at this time in the afternoon, for the men in the factories and establishments at Hertel avenue and farther north were in the habit of passing over the tracks in considerable numbers shortly after five o’clock, and this custom had been in vogue for many years without any protest or hindrance from the defendant so far as the evidence showed. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289 ; Byrne v. N. Y. C. & H. R. R. R. Co., 104 id. 362.)

The more disturbing question for the plaintiff in maintaining his action is the conduct of the intestate. We may concede that while he was passing along by the stone pile his view of the approaching train was cut off. After lie passed that obstruction, however, there was an unimpeded view of the oncoming train along his course for thirty-six feet at least and this view extended westward without any interruption for five or six hundred feet.

Keller was very familiar with the surroundings. He had daily passed over this crossing for months. He knew there were four tracks to cross at the terminus of the Y tracks and he knew the frequency with which trains ran over them.

The evidence is that after he got by the stone pile he turned his head in the direction of the approaching train. It was within plain view all the time after the stone pile ceased to be within his range of vision except for the smoke and steam to which we will advert directly. Rose and Granger testified that they did not hear the train which struck Keller. All of these men, conversant as they were with the situation, must have been lulled into security and have become careless and oblivious to danger by that very familiarity. They had often made this crossing and without accident and apparently anticipated no danger. Their attention may have been diverted by the westward-bound Central train. Its noise may have drowned the rumble of the train which struck Keller. The Central train was no obstruction and the very fact that by reason of it the approach of the train on the tracks of the Erie could not be readily heard called for greater vigilance in watching out for a train which was likely to come at any time.

Rose testified that steam and smoke from the Central train settled down in front of the Erie train shutting pff its view. If so the duty was all the more insistent upon these men to stop until 'the smoke and steam disappeared and rendered the approach of the train visible. (Heaney v. L. I. R. R. Co., 112 N. Y. 122, 128 ; Piper v. N. Y. C. & H. R. R. R. Co., 156 id. 224, 230; Manley v. N. Y. C. & H. R. R. R. Co., 18 App. Div. 420.)

This question was raised on a request to charge in effect that, if the smoke and steam obstructed the view of the coming train, Keller should have waited until this temporary obstruction lifted, which request was declined. If the version which Rose gave in one part of his testimony concerning this obstruction was correct, as the jury possibly may have found, then the defendant was entitled to this instruction.

But the infirmity of plaintiff’s ease lies at its foundation. Whether we accept as the truth that the smoke and steam temporarily obscured the outlook or whether there was nothing to shut off the sight of this train, the plaintiff ought not to have recovered.

We realize that in cases of this kind the alleged contributory negligence generally is for the jury to dispose of in the light of all the surrounding circumstances and reasonable inferences to be drawn therefrom. When, however, one deliberately and heedlessly walks in front of an approaching train a jury ought not to be permitted to extenuate his utter lack of ordinary care.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Stover, J., in result only; Hiscock, J., not . sitting. '

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