
    James W. Payne, Appellant, v. Binghamton Railway Company, Respondent.
    Third Department,
    March 5, 1913.
    Railroad—negligence — collision with vehicle at grade crossing—proof not showing contributory negligence as matter of law—failure of motorman to observe lighted vehicle.
    Action to recover for injuries to a vehicle and its' contents which having crossed a railroad track and while attempting to Cross a parallel track thirty-six feet distant owned by the defendant was struck by the defendant’s trolley ear which approached in the night time without warning and without a headlight. Evidence examined, and held, that it was error to dismiss the complaint upon the ground that the plaintiff’s driver was guilty of contributory negligence as a matter of law.
    Where the car had no headlight burning, the fact that the car itself was lighted did not as a matter of law give the driver of the vehicle notice of its approach.
    As the vehicle had a lighted lantern which could be seen from the sides thereof, the driver had a right to assume that the motorman would take heed and slacken the pace of his car.
    Appeal by the plaintiff, James W. Payne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 12th day of December, 1912, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case on a trial at the Broome Trial Term.
    
      Hinman, Howard & Kattell [Thomas B. Kattell of counsel], for the appellant.!
    
      Curtiss, Keenam, & Tuthill [Thomas J. Keenan of counsel], for the respondent.
   Smith, P. J.:

The appeal is from a nonsuit granted upon the plaintiff’s evidence alone. The action is brought to recover damages for injury to a van containing an organ and two pianos belonging to the plaintiff, and also to the horses which were attached to the van at the timé of the injury. Upon a highway crossing the defendant’s car collided with the plaintiff’s van, thereby causing the injury. At the point in question for 1,400 or 1,500 feet to the east the highway and two tracks of the Erie railroad and two tracks of the defendant railroad ran practically parallel. After passing, westward this distance the highway crosses over the . two railroads and no longer runs parallel thereto. At this point the tracks of the Erie road and of the defendant’s road could be seen for about 1,400 feet to the east. To the west the evidence is to the effect that the Erie track could be seen about a quarter of a mile. In the month of February, about ¡seven o’clock in the evening, in a van weighing about 3,700 pounds, plaintiff was transporting an organ and two pianos weighing 2,300 pounds from Binghamton westward to the village of Endicott. One William Slater, an experienced man, was. the plaintiff’s driver. Hanging from the top of the front of the van was a lantern which was lighted upon the night in question, and which, could be seen from the front and also from the sides of the van. As the van was about to cross these four tracks plaintiff asked the driver if everything was all right. The driver looked both ways and seeing nothing assured the plaintiff that it was and started to cross. His horses got beyond the two Erie tracks into the space between the Erie tracks and the defendant’s tracks and the fore wheels of the-van had passed the Erie tracks when he looked to the east and saw about foiir hundred feet distant one of the defendant’s cars coining without a headlight and without signal. He whipped up his horses and endeavored to get over and nearly succeeded when the car struck the rear part of the rear wheel and caused the damage for which this action is brought.

The negligence of the defendant is not questioned in the respondent’s brief. The car was proceeding after dark without a headlight at a rapid rate. The front door of the car was defective and kept coming open. In order to fix that the attention of the motorman was diverted and he was busy fixing this door just prior to the collision. Had he attended he would have seen the light upon this van passing this crossing and would have slowed up his car so that the collision would have been avoided. The plaintiff on the trial was nonsuited upon the ground that Slater, the driver, was guilty of negligence contributing to the plaintiff’s injury, and it is upon this ground that the respondent seeks to sustain this judgment.

I am unable to agree with the learned trial judge in the conclusion reached. The question turns upon the evidence of Slater himself, who swears that as he neared the turn to cross the Erie tracks he looked for trains east. From that time on as he crossed the two railroads he looked east and west. As he went across the track he looked both ways and saw nothing coming. From the Erie track to the defendant’s track is a descent of about two feet and a half. The distance between the tracks is about thirty-six feet. If the defendant’s car had had a headlight Slater would probably have discovered the approach of the car before he came upon the Erie track. The fact that the car itself was lighted, without a headlight, is not of itself as matter of law sufficient to give him notice of the approach of the car. After he had started on the down grade, having passed the Erie track, and when his horses were within thirteen or fifteen feet of the defendant’s track, he first discovered the approach of the defendant’s car four hundred feet away. He thought he could get over and whipped up his horses and almost succeeded. Upon these facts he is charged with contributory negligence. It appears that there were two inches of old snow upon the ground at the time. From the forward end of the pole to the rear end of the wagon was about twenty-six feet. It can hardly he that the court would require.plaintiff under such circumstances to hold his. van upon the Erie tracks. While he could See the Erie tracks to the west about a quarter of a mile, if he had waited a fast train going around the curve would have been upon him in a very short time and before he . could have started his horses and gotten his van thus heavily loaded out of danger. It cannot be that he was required to stop his van between the two tracks. That would be practically impossible. The van and the horses were twenty-six feet and the space was only thirty-six feet, to allow nothing for the overhanging of the cars. There was a material grade and slippery ground and a heavy load. It is undoubtedly true that trolley cars may run faster in the country than in the city, and that one who uses a highway crossing must assume this custom to exist. Nevertheless, the duty of the motorman of a street car in approaching a dangerous highway crossing is materially different from the duty of an engineer of a steam car with a heavy train behind him. The driver of this van had the right to assume that the motorman of this street car, warned by the lantern in the front of his van, would if necessary pay some heed thereto and slacken his pace at least. If he had so done it would have averted this accident. It seems to me clear that the court was not authorized to take this question from the jury and decide as matter of law that, under these circumstances the plaintiff’s servant was guilty of contributory negligence. The respondent’s attorney will t’aké issue with the accuracy of my statement of some of the facts attending this accident. Upon reading carefully the whole evidence of Slater, however, I think' I have stated nothing which the jury would not be authorized to infer therefrom, although there are some detached sentences to. be found in his evidence which taken alone might indicate less diligence upon his part.

I recommend that the judgment and order be reversed and a new trial granted, with costs to the appellant to abide the event. . ..

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  