
    Helen Mahoney, Appellant, v. The Long Island Railroad Company, Respondent, Impleaded with Coney Island and Brooklyn Railroad Company, Defendant.
    Second Department,
    December 21, 1911.
    Railroad — negligence — collision of trolley ear and railroad train — when the railroad company is not liable.
    Where, when a trolley car approaches within 30 or 35 feet of a steam railroad crossing, the conductor of the trolley car alights and seeing, apparently stationary,, a train on the railroad about 300 or 800 feet away, and then, without speaking to the flagman of the railroad company, who was standing in the middle of the crossing waving a white flag, with a red flag folded up behind him, signals the trolley car to proceed, with the result that the trolley car is struck by the train, the' railroad company is not liable in damages to passengers on the trolley car injured in the collision, particularly where the conductor testified that he did not rely on the flagman, but solely upon his own observation, and there is no evidence that the flagman was incompetent or gave improper signals.
    Appeal by the plaintiff, Helen Mahoney, from a judgment of the Supreme 'Court in favor of the defendant, The Long Island Railroad Company, entered in the office of the clerk of the county of Kings on the 12th day of May,' 1911, upon the dismissal of the complaint as to said defendant by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.
    
      
      Frederick S. Martyn, for the appellant.
    
      William C. Beecher [Joseph F. Keany with him on the brief], for the respondent.
   Woodward, J.:

The general facts involved in this case are not materially different from those appearing in Johnson v. Long Island Railroad Co. (142 App. Div. 948) and Reid v. Long Island Railroad Co. (144 id. 267). In the prior cases the flagman, employed by the defendant, was called as a witness and gave material evidence. In the case at bar the flagman was not called; the plaintiff' called., among her witnesses, the conductor of the Coney Island and Brooklyn railroad who had the car in charge which was run into by the Long Island Railroad Company’s dirt train, and this witness testified that the trolley car in his charge approached to within 20 or 25 feet of the crossing; that he got off from the car, as provided by the rules of his company, and ran forward to the track of the respondent and looked in .both directions; that he saw the, respondent’s work train about 200 or 300 feet away, apparently standing still, and that he immediately signaled the trolley car to come on; that the car started, attaining a speed about as fast as a horse would trot, and when it had reached the cross-' ing it was run into by the defendant’s work train. The evidence was to the effect that the conductor did not speak to the flagman, who appears to have been occupying a place in the middle of the street, at or near the intersection of the trolley tracks with those of the respondent’s railroad, waving a white flag, with a red flag folded up behind him. The record does not show the significance of the waving of the white flag, but the point does not seem to be material, for the plaintiff’s own witness, the conductor, testifies that he went upon the track and made his observations, as it was his duty to do, and that he did not depend upon the flagman; that, “I depended entirely upon my own observation in the operation of my car and the handling of my car.” There certainly was no evidence that the respondent’s flagman was not giving the proper signals under the circumstances. The trolley car was at a standstill, and the evidence clearly discloses that he had nothing to do with its operation; that the conductor of the trolley car did not depend upon him in any measure for the operation of the train, and if the trolley car was not moving, but had stopped at, a safe point, it was proper for the flagman to signal the respondent’s work train to come forward, arid he had no reason to assume that the conductor would bring his car .up into a position of danger,, for it must he obvious, from what occurred, that the respondent’s train could not have been at' a standstill 200 or 300 feet away when the conductor looked, or it could not have got under motion and traveled that distance while the trolley car was traversing 20 or 25 feet at a speed equal to a horse’s trot, even though it should be a very slow trot. It was not negligent for the respondent to operate its work train over this crossing under the circumstances disclosed by the evideri.ee. It had a flagman there who was giving signals. Ho suggestion is made that he was. incompetent, nor is there any evidence that the signal which he gave was not the proper signal under the circumstances, and the rate of speed at which the respondent’s train was being operated was of no "consequence if the conductor of the trolley car had not signaled his car to come from a position of safety into one of danger— into the presence of a danger which must have been entirely obvious if he in good faith made the examination which it was his duty to make before giving the signal to come forward to his motorman.

The evidence did not justify sending the case to the jury, in so far as the defendant, respondent, is concerned, and the motion for a nonsuit was properly granted.

The judgment should be affirmed, with costs.

Present — Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ.

Judgment unanimously affirmed, with costs.  