
    Orville Balch, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    July 6, 1909.
    Railroad — negligence — collision at grade crossing — facts raising questions for jury.
    Action to recover the value of a wagon and team of horses which were struck by a train at a railroad crossing. While the plaintiff was driving over the defendant’s track after dark the horses fell, owing to the fact that the pavement was covered with ice and very slippery. The defendant’s flagman, whose duty it was to guard the crossing, aided the plaintiff in an effort to get the horses out of danger. As a freight train approached he swung his lantern signaling it to stop; but it failed to do so in time to avoid a collision. Evidence examined, and held, that a dismissal of the complaint was error, as the j ury were entitled to say whether tlie flagman was negligent in failing to signal the train in time, and whether the engineer was negligent in failing to heed the signal given.
    McLennan, P. J., and Robson, J., dissented.
    Appeal by the plaintiff, Orville Balch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 3d day of March, 1904, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Oneida Trial Term.
    
      
      Charles H Searle, for the appellant.
    
      Thomas D. Watkins, for the respondent.
   Kruse, J.:

A moving freight train on the defendant’s railroad collided with the plaintiff’s team at a street crossing in the city of Utica, killing the horses and demolishing the wagon. The plaintiff seeks to recover damages therefor, claiming that the casualty was the result of the defendant’s negligence. At the close off the plaintiff’s evidence the defendant’s motion for a nonsuit was granted, and the exception thereto presents the only question upon this appeal.

The accident occurred on November 11, 1901, early in the evening, but after dark. It had rained in the afternoon, and was cold. The rain had frozen and the streets were very slippery. The accident occurred where the railroad crosses Webster avenue. The horses and all of the wagon except the hind wheels had gotten over the track, when one of the horses slipped and fell on the icy pavement. The driver succeeded in getting the horse up, but it fell again, and at one time both of the horses were- down. He tried to draw the king bolt and detach the team from the wagon, but was unsuccessful. He was thus engaged in attempting to extricate himself from his perilous situation, for about ten minutes, when the freight train came along and the collision occurred, with the result stated.

There was a flagman’s shanty 140 feet east of the place where the accident occurred. The evidence tended to show that the flagman guarded the crossing in question, as well as others. The East Utica station is about 575 feet west from the place of 'accident. The flagman evidently saw the danger of the horses, and went up to the place of accident, presumably to render assistance. He then ran back to the shanty after his lantern. The freight train was approaching from the west. He swung his lantern, manifestly for the purpose of stopping the train, but it did not stop in time to avoid the collision.

The train seems to have been discovered when the flagman went back for his lantern. It was then at Howard avenue, fourteen blocks to the west. Just when it was that the flagman commenced swinging his lantern is not very clear, but the inference is permissible that it was not done until he was nearly back to the scene of the accident. The driver testified that he then heard the flagman holler to “ Look out; the train is coming,” and another witness testified that the flagman hollered, “ Get out or the way; she is going through,” and that was when the train was at the station.

The headlight of the engine was lighted, but there is no evidence as to how far the engineer could see ahead of his train with the aid of this light; nor did any one testify as to the precise rate of speed at which the train was going. It is stated that the train was going fast. It appeared, however, that this train had been within the city limits for about the distance of two miles before the collision occurred, and there is an ordinance of the city of Utica limiting the rate of speed of trains within the city limits to eight miles an hour. We may, therefore, assume in the absence of any evidence to the contrary, that the speed of the train did not exceed that.rate.

It also appears that there was a semaphore between the station and the place of accident, about 500 feet east of the station and about 75 feet west of the place of accident. The semaphore was set against the train. It whistled for the semaphore when it was about 1,200 or 1,400 feet west thereof, and thereupon the station agent set the semaphore so as to permit it to go through.

The train consisted of about thirty cars, each car being about 40 feet long, except the engine and tender, which were together about 50 feet long. An engineer testified that on that grade, with a slippery track, a train of thirty to thirty-three cars, if running fast, could be stopped in between 1,500 and 2,000 feet; and if running at eight miles an hour, in running its length, or from 1,250 to 1,400 feet. We may, therefore, assume that the engineer on the freight train could have stopped his train before reaching the semaphore, after he had whistled. Going at the rate of eight miles an hour, it would take about two minutes for the train to run from where the whistle was blown to the semaphore station. So that if the flagman had signaled two minutes before the collision occurred, and the engineer had seen the signal, the train could have been stopped and the collision prevented.

That the engineer could have seen the signal if he had been looking seems clear. The track was straight for several miles, and the train was observed while still fourteen blocks away. It is possible that the flagman supposed that the train would stop at the station, and if so it may have been a mere error of judgment on his part; but that, I think, would be a question of fact.

I think the jury could have found from the evidence that either the flagman was negligent in not waving his lantern in time to stop the train, or else that the engineer was heedless of the signals given him, and neglected to bring his train to a stop in time to avoid the collision.

The defendant saw fit not to call the engineer or flagman, or give any evidence. It challenged the sufficiency of the evidence, as it had the right to do, after the plaintiff had rested. While the evidence is not very satisfactory, we think it sufficient to take the case to the jury, in the absence of any evidence to the contrary.

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

All concurred, except McLennan, P. J., and Robson, J., who dissented on the ground that the plaintiff failed to establish actionable negligence on the part of the defendant.

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