
    Guy Loomis, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    June 4, 1909.
    Railroad—negligence — collision at crossing—calculation of possibilities — dismissal of complaint.
    Where in an action to recover for injuries received from a collision at a crossing between defendant’s train'and an automobile which plaintiff was driving, there is evidence that the train was running under full headway, and that although the view of the track was partly obstructed by a house and a sign, plaintiff looked south, the direction from which the train came, until he passed the sign, when, his view being entirely obstructed in that direction by a hedge, he looked north, and that he did not see the train until within eight feet of the track, it cannot be held as matter of law that plaintiff’s testimony is incredible although at one point a view between the house and the sign could be had for 450 feet down the track and the train would have reached this point unless it were going sixty miles an hour, which was thought impossible, as it had stopped at a station 1,000 feet south of the crossing.
    Where, in addition, it appears that the train gave no signal of its approach to the crossing; that plaintiff listened all the time while nearing the track but heard nothing, a judgment entered on the dismissal of the complaint will be reversed, since the calculation on which it was based did not take into account the constantly increasing speed of the train, and there was no evidence that it was impossible for the train to attain a speed of sixty miles an hour within 500 feet. Gaynor, J., dissented.
    Appeal by the plaintiff, Guy Loomis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of November, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 7th day of November, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George V. Brower, for the appellant.
    
      D. A. Marsh George D. Yeomans with him on the brief], for the respondent.
   Miller, J.:

This is a negligence suit, growing .out of a collision between one of the defendant’s electric trains and an automobile being driven by the plaintiff at a crossing at Avenue D in the borough of Brooklyn, between East Fifteenth and Sixteenth streets. The plaintiff was proceeding westerly at not more than six miles an hour and was struck by a three-car electric train- from the south, running under full headway and without giving any signal of its approach to the crossing. The rear end of the train when it was stopped was about 150 feet from the point of the collision. As the plaintiff approached the crossing he had a view toward the south between a building and a sign, varying with the distance from the crossing. For instance at 76 feet, on the curb line, there was an open space between the building and the sign, admitting of a view over the tracks between, two points, 90 and 236 feet respectively, south of the crossing ; at 66 feet from the crossing the view over the tracks was confined between two points, 130 and 325 feet respectively from the crossing; at 56 feet, the range was between two points, 275 and 555 feet respectively, south of the crossing. Parallel with the tracks and 15 feet east of the first rail was a privet hedge about 6 feet high and a row of trees and telegraph and trolley poles within a few feet of each other. The east end of. the sign and -the northwest corner of the building were each about 46 feet from the track, but a view was permitted between them at a constantly changing angle, for the reason that the building was something over 50 feet south of the sign. The plaintiff swears that he looked constantly to the south during the entire distance where he had- a view between the house and the sign, and saw no train. Over that space the angle of vision . was doubtless such that he could have seen the top of a train through the branches of the trees along the track had one been within the range of vision. The west end of the sigh was about 30. feet, from the east rail; but, upon passing the sign, the plaintiff was in a more direct line with. the hedge, the trees and the poles. The ' center of the hedge (its branches extended 2 or 3 feet in' each direction) was 15 feet from the east. rail.' The front of the automobile was ,5 feet ahead of the seat, and the roadway, of Avenue D was from 1 to' 2 feet lower than the bottom of the hedge. The plaintiff testified that, upon passing the space between the building and the sign, he then looked to the north until just upon the track, when he again looked to the south and saw the train almost upon him. He also testified that he was listening for a train the entire distance. The roadway was rough, and on the north side there were piles of stones. The learned trial justice calculated that, when the plaintiff was 46 feet from the east rail he could see down' the track 450 feet, and that the .train must have been in sight unless it was going 60 miles an hour, which was thought to be impossible as the train had stopped at a station 1,000 feet south of the crossing. There is nothing in the record to show that an electric train could not get up a speed of 60 miles an hour in going 500 or 600 feet; and I do not think that could be held to be an impossibility as a matter of law. Moreover, the calculation entirely overlooked the possibility of constantly accelerating speed until the crossing was reached. Although the view between the building and the sign was more or less obstructed, the plaintiff was probably required to look more intently for that reason; and, if the evidence established the fact that the train was then within the range of his vision, it might be held as a matter of law that he was guilty of contributory negligence though he testified that he looked constantly while passing the open space and did not see the train.

The train threw the automobile about forty feet and its occupants a much greater distance. The witnesses all say that it was going at a high rate of speed. I do not think that it is at all improbable that it was running at the rate of sixty miles an hour. At any rate, upon this record, it could not be held as a matter of law that the train was within sight when the plaintiff says he looked but did not see it. In order to hold that statement to be incredible as a matter of law the fact must be established that the plaintiff must have seen it had he looked. The learned trial justice was also of the opinion that the plaintiff might, have seen the train after passing the sign. It appears from the record that the plaintiff’s eyes must have been about two feet lower than the top of the privet hedge. After passing the sign he was close to the hedge, and no calculation has been made to show how high the line of vision was' above the tracks; but a photograph is in the record and shows that the view was practically, if not completely, obscured until the plaintiff had passed beyond, the hedge, when the front of- his automobile must have been within eight' feet of, the nearest rail. . I think it could not be-held as matter of law that the train- was in sight when he says he looked^ or that he could have seen the train had he looked between the sign and the hedge; The plaintiff looked constantly Jo the south where lie had an unobscured view. When his view to' the south was obstructed he looked to the north, and.he says that he.listened constantly. When he had passed beyond the hedge he was practically upon the track, and was not chargeable .with negligence for anything he did in an emergency. He had to attend to the running of the machine over a rough roadway.. In view of the proof of obstructions the plaintiff’s testimony was not incredible as- matter of law, and if believed by the jury,' presented a question of fact-, whether-he exercised reasonable Care.

The plaintiff’s companion; was killed. A judgment in favor'' of his estate was affirmed. (Ward v; Brooklyn Heights R. R. Co., 119 App. Div. 487; affd., 190 N. Y. 559.)

The judgment is reversed.

Hihschbebg-, P, J., Jebes and Rich, JJ., concurred; G-ay.bob, J., dissented.- . -

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