
    Wilhelmina Kurt, as Administratrix, etc., of William Kurt, Deceased, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant.
    Fourth Department,
    July 7,1908.
    Negligence — injury at railroad crossing — contributory negligence — section 53, Railroad Lawright to go around a train blocking a •crossing.
    One who goes upon a railroad track in an attempt to pass around a standing train which has blocked the crossing for more than five minutes is not a trespasser, even though he goes outside the bounds of the street, if it is reasonably necessary for him to do so.
    Section 53 of the Railroad Law does not take away the common-law right of a person to go around cars which are unreasonably obstructing a street crossing.
    Where a train running backward at the rate of thirty miles ah hour, on a dark night, approaches a crossing which the engineer knows to be used by a large number of people at that hour and to be blocked by a standing train, without any warning other than a single red lantern showing on the end of the train, and injures a pedestrian, a jury is warranted in finding the railroad grossly negligent.
    A railroad company may not unlawfully obstruct a public street and prevent persons having occasion to pass over the crossing from going around cars, even outside of the street limits, if it is reasonably necessary for such persons to do so.
    
      A man. with normal faculties who goes 75 to 150 feet away from a crossing along a railroad track to pass around a train which is blocking the crossing and is injured by another train backing down on him, is not guilty of contributory negligence as a matter of law.
    McLennan, P. J., and Spring, J., dissented.
    Appeal by the defendant, The Lake Shore and Michigan Southern Eailway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of May, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 12th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas D. Powell and William B. Hoyt, for the appellant.
    
      Le Roy Andrus and Herman Hennig, for the respondent.
   Kruse, J.:

The plaintiff’s intestate was struck by a train, causing his death, while he was attempting to pass around another train which blocked the crossing over which he desired to go. At the time he was struck he was outside the bounds of the street, and on or near the track of the train which struck him.

The serious question in the case, as I view it, is whether the deceased was a trespasser upon the defendant’s railroad tracks in attempting to pass around the standing train. If he was, the only duty the defendant owed him was not to willfully, wantonly or intentionally injure him. (Keller v. Erie R. R. Co., 183 N. Y. 67.)

The accident occurred on the morning of November 15, 1902, before daylight, at the Tifft street crossing, in the city of Buffalo. The street runs east and west, and the defendant’s tracks run north and south. Within a space of 200 or 300 feet ten tracks cross the street at this point. The most westerly four tracks belong to the defendant; the other tracks belong to other railroads. The deceased lived some distance to the east of the tracks, and the steel plant where he worked is west' of the tracks. He was a man fifty-five years of age; industrious, had good health, and presumably all his faculties were normal. He was familiar with the situation, having worked- at this same place for' about a year, and crossed the tracks daily.

On the morning in question, about half-past five o’clock, he left his home for his work. It was a walk of about thirty minutes from his house to the railroad tracks. He found the crossing blocked by this standing train. There is a dispute as to how long the train had stood there, but from the evidence the jury was warranted in finding that it had remained there for five minutes and upwards. The train was composed of an engine and freight cars. It was headed north, although the engine at the north end was turned around so that the tender pointed north, and the head of the engine was coupled to the freight cars. The head of the train extended from 75 to loO feet north of the crossing; the engineer of the standing train puts it 150 feet. It was a long train; - the other end extending south, as some of the witnesses testify, as far as they could see. It was standing on the third track, counting from the east side of the defendant’s tracks. The headlight was burning, throwing its light to the south. The deceased walked toward the engine, and somewhere within 75 to 150 feet north of the street bounds, and near the head of the standing engine, he was struck by a northbound train on the second track from the east side.

The train which struck him consisted of an engine and two coaches. It came backward running at the rate of thirty to forty miles an hour. .The proof tended to show that no bell was rung or whistle sounded, Or other warning given as the train approached the crossing, and, further, that the only light upon the end of the train was a red light upon the platform, the size of a railroad lantern, although the defendant’s witnesses state that there were three lights on the end of the train which struck the deceased ;' a green light on each side of the car on top, and a red light in the center of the platform.

- While the tracks are straight to the south for a mile and a half, and an approaching train would' ordinarily be in view to a person at the crossing for that entire distance if light enough to see, in this instance it was dark. The train was coming backward; the lights which were visible to a person at the crossing would ordinarily indicate that the train was going in an opposite direction, and if the deceased had the right to make this detour to cross the tracks as he attempted to do, I think it cannot be said that the deceased was guilty of. contributory negligence as a matter of law, in going upon these tracks and around this train to get over the crossing. Moreover, in running this train backwards at such a high rate of speed, without giving warning and without other lights than those mentioned, knowing that this crossing was blocked and that this large number of people was in the habit of crossing there at this hour of the day, the jury was well warranted in finding that the defendant was grossly negligent in approaching and passing over this crossing, and unless the deceased was a trespasser, the jury was likewise warranted in finding that it was negligent as to him, and that such negligence was the cause of lfis death.

The defendant contends that the deceased was a trespasser. Section 53 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) provides: “No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.”

This provision was discussed in the case of Keller v. Erie R. R. Co. (183 N. Y. 67), and that case is relied upon as an authority to sustain the defendant’s contention. It there appeared that the person for whose death the action was brought was walking along the railroad track, using it as a short cut between two streets at .the time he was struck by the train. The accident occurred at the intersection of two railroads, and not at or near a street or highway. It was there held that the injured person was a trespasser. But I do not think it was intended by that decision to hold that every person not connected with or employed upon the railroad is a trespasser, under all circumstances, in going upon the tracks of a railroad elsewhere than within the bounds of a street or highway. The concurring opinion of Chief Judge Cullen makes it clear, I think, that such was not the decision in that case.

The case of Gunther v. N. Y. C. & H. R. R. R. Co. (81 App. Div. 606) is also cited by defendant’s counsel. But there the injured person was likewise walking along the railroad track, using it for his own. convenience. While it appeared that he was prevented from walking directly across .the tracks lo the street which he ■intended to' reach, by cars obstructing his. way, it further appeared that the cars were not. within the street; that the street did not cross ■■ the railroad, and- it was there held that, although it was customary for persons' to pass along the tracks as the plaintiff’s intestate did, they were mere licensees, and the only duty the railroad company ■ owed them was not to' willfully or wantonly injure them. But I do not think the deceased was, necessarily, either a mere licensee, whose right depended upon the consent of-the defendant, or a.- trespasser. If the defendant was unreasonably obstructing the' street crossing, and it was necessary for the deceased to pass over, I think he had the right to go around the cars which obstructed the crossing, and that that right, does not depend upon the consent or acquiescence of the defendant. A railroad company may not unlawfully obstruct a public street and prevent persons having occasion to pass over the crossing from going around cars, even outside of the street limits, if it is reasonably necessary for such persons to do so. (Shea v. Sixth Ave. R. R. Co., 62 N. Y. 183, 184; Mayer v. Chicago & Alton R. R. Co., 63 Ill. App. 309; Chicago & Alton R. R. Co. v. Mayer, 112 id. 149; Chicago Junction R. Co. v. McGrath, 107 id. 100; affd., 203 Ill. 511; Smith v. Savannah, etc., R. Co., 84 Ga. 698; 42 Am. & Eng. R. R. Cas. 105.)

This right is derived from, the common law (2 Bl. Com. 36; Campbell v. Race, 61 Mass. [7 Cush.] 408), and I think it was not taken away by the provisions of section 53 of the Eailroad Law, to which I have referred.

It is true that a literal reading of ■ the provisions - of that section would include the deceased, since he was not employed upon or connected with the railroad, and was outside the bounds of the highway, strictly speaking, but such a construction • would also include persons using private, crossings, and even persons crossing the tracks in going to or from trains at railroad stations.

It appears in this case that the crossing had been blocked.' longer than three minutes, contrary to the provisions of the ordinances of the city of Buffalo, and the inference seems permissible that this train had stood on this crossing even longer than five, minutes, contrary to the provisions of section 421 of the Penal Code. I think the .jury was well warranted in finding that the railroad company was unreasonably arid unlawfully obstructing this. crossing, and that it was reasonably necessary for the deceased to go around the train in order to get across the tracks, and that the defendant was grossly negligent in running its train as it did.

I think the learned trial justice correctly submitted the case to the jury, and that the verdict is well warranted by the evidence. The judgment and order should be affirmed, with costs.

All concurred, except McLennan, P. J., and Spring, J., who dissented on the ground that plaintiff’s intestate was a trespasser and was also guilty of contributory negligence.

Judgment and order affirmed, with costs.  