
    Ann Cranston, as Adm’x, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    Railroads — Signals.
    Defendant’s road crosse sWater street in Troy almost, at grade. About forty feet beyond Water street it crosses a private way, used by the public as a driveway, to the knowledge of its owners and also to the knowledge of the employees of defendant. Held, that defendant was bound to give the statutory signal eighty rods from the crossing of the private way.
    Appeal from judgment in favor of plaintiff, entered on a verdict and from order denying motion for a new trial on the minutes.
    
      B. A. Parmenter, for resp’t; Franh Loomis (Levi Smith, of counsel), for ajip’lt.
   Mayham, J.

This is an appeal from a judgment for the plaintiff rendered upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made on the minutes.

The action was brought and prosecuted for the alleged negligence of the defendant in running a locomotive on the defendant’s railroad in Troy, by which plaintiff’s intestate was killed.

On the occasion of the accident the local train on the defendant’s railroad which left Albany at 4:30 P. M. on its way to Troy, at a point where a private driveway crosses the track of the defendant’s railway between the Troy Iron and Steel Works, the locomotive on defendant’s railroad drawing three coaches, collided with a sleigh drawn by one horse, in wffiich plaintiff’s intestate was riding, throwing him some distance and so seriously injuring him as to cause his death.

The defendant’s railroad track at about the point where the injury occurred is crossed by Water street on a grade, and about forty feet north of Water street is a private way, but used by the public as a drive-way, to the knowledge of the Iron Works Company, and also the employees and officers of the defendant, which also crosses the railroad track on a grade.

At the time of the accident, David Cranston, the plaintiff's intestate, was driving across the railroad track on the private way .going westerly.

The crossing at this point being a surface crossing and practically on a level, the Water street crossing and the private way were substantially the same.

Xo point seems to have been made that the deceased was improperly on the private crossing, and the case, so far as the facts are concerned, turns upon the question of negligence of the defendant and contributory negligence of plaintiff’s intestate.

It is insisted by the learned counsel for the appellant that the plaintiff failed in the two essential particulars to make out a cause of action, and as matter of law the judge at the trial should for that reason have dismissed the complaint on defendant’s motion.

First. That there was no proof of negligence on the part of the defendant.

Second. That the plaintiff failed to establish by her proof that the deceased was free from contributory negligence, but on the contrary showed affirmatively that Ms negligence contributed to the accident.

We have examined the evidence in this case carefully which bears upon the question of negligence on the part of the defendant, and find a clear and decided conflict upon the question bearing upon that subject. The rate of speed at which the train was running, the sounding of the whistle and ringing of the engine bell, were all subjects of inquiry on the trial, as to which there was a clear and sharp conflict, raising a question of fact upon that subject proper for the jury, which we think was properly submitted to them, unless the plaintiff had so far failed on the other proposition as to make it the duty of the court to dismiss the complaint because of plaintiff’s failure to establish want of contributory negligence on the part of the deceased.

It appeared from the evidence that the range of vision was limited to a narrow space as the deceased approached the crossing, and there was no evidence that he either heard or saw the approaching train in time to have avoided the collision.

The topography of the surrounding lands, the nature and extent of the obstruction both of vision and sound, the question whether there was any warning by the approaching train to attract his attention or apprise him of the danger, about which tliere were some conflict of evidence, were all proper subjects for the consideration of the jury, and were, as we think, properly submitted, to them upon that subject.'

Upon these questions we think the learned judge was right in. refusing to nonsuit, and the submission of them to the jury was-proper; and this is especially so in view of the facts that the facts of this case upon the above points, upon substantially the same evidence, was submitted to and passed upon by this court on a former appeal, reported in 39 Hun, 308, where Bockes, J., reviews the evidence and reaches a conclusion which is tersely expressed by him as follows: “We do not think the case was so clearly and indubitably with the defendant on the proof that it could have been taken from the jury.” It is true the case was sent back for a new trial upon appeal to the court of appeals, but not upon the point under discussion, but upon misdirection of the judge to the jury, and we see no reason for changing the views expressed by this court upon this point on that appeal

On the trial the counsel for the defendant asked the court to charge the jury that the defendant was not bound under the circumstances of this case to give the statutory signals eighty rods from crossing, or either of them, which the court declined, and the defendant excepted.

It is now insisted that was error; we think the refusal of the judge to charge as requested under the circumstances of this case was proper. The evidence shows that the railroad crossing of the private way was substantially the same as Water street crossing, and that the public were accustomed, to the knowledge of the defendant, frequently to pass over this crossing. To hold as matter of law that no signal of approach was required at this crossing under the circumstances of this case, would be to subject the numerous public passing and repassing over the track at this street and private crossing to imminent peril of frequent and dangerous collisions, which we think the facts of this case would not justify.

Uor do we think it'was error for the judge to refuse to charge as matter of law as requested at folio 936 of the case.

The question as .to whether the deceased had his horse under proper control was one of fact for the jury.

On the whole case we see no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.  