
    Addie R. Tingley, as Executrix, etc., of Hilbert B. Tingley, Deceased, Appellant, v. The Long Island Railroad Company, Respondent.
    Second Department,
    December, 1905.
    Negligence — prospective passenger killed by train at station — when liability of defendant question for jury — evidence — when error to admit evidence that intestate had railroad pass — error in admitting evidence that intestate was employed as physician by defendant.
    The plaintiffs intestate was killed by being struck by a train while trying to cross the tracks to reach the railroad station in time to take passage on such train. It was shown that it was customary for said train to stop at an express station 400 feet distant and then to stop at the station intestate was trying to reach, but that at the time in question the train did not stop at the second station. It was also shown that the tracks were guarded on one side by a picket fence seven and a half feet high and that the two tracks were separated by a similar fence, and that wide doors in such fences were standing open and unguarded at the time of the accident. It was shown that the intestate looked right and left on passing the first gate and that as he passed the second gate he was struck and killed.
    
      Held, that the case was properly left to the jury;
    That it was error to admit evidence that the intestate bad a pass issued by the defendant, for he was not a passenger at the time of the accident, nor, it seems, would the evidence have been competent had he been a passenger. .
    Error in reception of such evidence is not cured by a subsequent refusal to admit a copy of the pass.
    
      Held, further, that it was error to admit evidence that the intestate was under contract with the defendant to act as its physician when called upon to do so, as, at the time, he was going to attend a patient of his own, and such employment did not make him a fellow-servant with other employees.
    Appeal by the plaintiff, Addie B. Tingley, as executrix, etc., of Hilbert B. Tingley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 29th day of April, 1904, upon the verdict nf a jury,, and also from an order entered in said-clerk’s office on the 1st day of June, 1904, denying the plaintiff’s motion for a new- trial made upon the minutes. . .
    
      W. W. Goodrich [James J. Bennett with him on the brief], for the appellant. . '
    
      William C. Beecher [Joseph.F. Keany with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff’s husband, Dr. Hilbert B. Tingley, while endeavoring to cross, in front of, or while attempting to board, one of the defendant’s trains, running west' at Holland’s Station in the- county Of Queens, on the afternoon of January 14, 1903, was struck by the' train and almost instantly killed. Upon the trial' of the action brought under the statute (Cede Civ. Proc.,, § 1902. et seq.). to recover damages for wrongfully -causing his death,' the jury rendered a verdict for the defendant. •

At Holland’s Station the defendant’s railroad tracks extend east and west,, the west-bound track being on the north and the eastbound track on the south. They are crossed at right angles by Bay View a ven tie on the east and Holland avenue on the west, while midway between these highways and parallel thereto Oceanus avenue extends to the' tracks, dividing the land on the south of the tracks into two two-hundred-f eet blocks. . The depot waiting room is on the south side of the tracks, occupying the northeast corner of the-block between Oceanus avenue and Holland avenue, and a platform extends from the depot- westward to Holland aveniie. A picket' fence, seven and one-half feet high, between this platform and the nearer track extends westward across Holland avenue with gates opposite the depot and at Holland avenue: . There is also a similar fence between the tracks with a gate oil Holland avenue fourteen and one-half -feet wide, the width of the other Holland avenue gate. On the'’northern side of the tracks and parallel thereto is a platform extending from Holland "avenue to Bay View avenue, more than four hundred feet, at the eastern end of which is an express station.” Dr. Tingley resided a block south of the. railroad tracks and about the same distance west of Holland avenue, his house commanding a view of the tracks in.front of the station as the intervening lands were practically vacant. It appears from the plaintiff’s testimony that west-bound passenger trains customarily stopped first at the express station ” and then' proceeded to the depot, where they stopped if there were passengers waiting before crossing Holland avenue. She testified that on the afternoon of the accident her husband left the house to board a west-bound train due at Holland’s Station shortly before three: He crossed the vacant lot, pursuing a straight course for the Holland avenue gates, and from her veranda she saw him look to the right and left as he entered the first of the gates, both of which were open, unguarded and about twenty-five feet apart. As he passed through the second gate she saw him raise his right hand, and at the same moment she heard a quick, sharp whistle from the engine, the first signal she had heard from the approaching west-bound train. The doctor immediately began to run, looking in the direction of the. train, which the plaintiff did not see till about the moment it struck him. She saw him struck by the front of the engine and thrown down. Running toward .the place of the accident she was stopped by a. man at the gate who turned her around. She then swooned and was carried home. It also appeared that the train had' stopped at the “ express station,” but not at the depot, and it may fairly be inferred from the evidence that the double line of high fence obstructed the doctor’s view of the train until he had passed the second gate when it was too late for him to escape.

Taking the view most favorable to the plaintiff the case was properly one for the jury. The situation was much like that in the case of Mackay v. New York Central Railroad (35 N. Y. 75) where the crossing was at grade and unprotected by a flagman and the defendant had piled beside the track rows of wood which obstructed the view of the plaintiff’s intestate as he attempted to cross. The court held that he was not guilty of contributory negligence in failing to look toward the approaching train until he had passed the wood piles, when it was too late for him to stop.

In the recent case of Cranch v. Brooldyn Heights R. R. Co. (107 App. Div. 341), where the plaintiff attempted to cross in front of an approaching train which she rightfully assumed would stop at the station but did not, a situation much like that presented in the case át bar, Mr. Justice Jen’ks, writing the prevailing opinion on the affirmance of the judgment for the plaintiff,, says (p. 342): “ I think that the plaintiff was not chargeable with Contributory negligence as a matter .of law iñ assuming that the approaching train would not' continue on its way up to the point where ;she attempted to cross. She is entitled to the most favorable inferences. (Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 224.)” Ldissented in. the 'Orcmoh case solely because the plaintiff, after seeing the approaching train and being able to-cross in safety, deliberately; turned her back to the train and made a detour which brought her into collision with it.

The learned counsel for the! appellant earnestly argues that error was committed in the admission of evidence that the doctor had a pass from the defendant. The following quotation from the record will make' this clear: “Peter PI. Woodward, called as a witness for the defendant,, duly sworn, testified:. Direct examination by Mr. Beecher: I am in the employ, of the Long Island Railroad, in the express department. This signature on this card is mine. Q. Did you, in January, have anything to do with regard to issuing passes on the Long Island Railroad? A. Yes, sir. That was one of my duties. Q. Do you" know whether or not a pass was issued to Dr. Hilbert B. Tingley in January, 1903 ? Objected to as immaterial and irrelevant. The Court: Objection overruled. Mr. Goodrich : I except. A., Yes, sir; "it was issued around the 1st of January or previous to that. This is a copy of the pass which was issued. The conditions on the back was (sic) contained on the pass issued to Dr. Tingley. Mr. Goodrich: I object to that on the . same grounds as immaterial and irrelevant, and move to strike the answer out.' "The Court: The objection is overruled. The motion to strike out is denied; Mr. Goodrich : I except. Defendant’s counsel: I offer in evidence the pass,, they having failed to present the -original. Objected to as immaterial and irrelevant, and on the further ground that it is not shown that that pass was in the possession of Dr. Tinglev at the time of this accident, or that he was using it. The Court: I do not consider that it is material or relevant. . 1 will sustain the objection, and give defendant an exception, and permit it to be marked for identification. Marked Exhibit Ho. 2, foridentificátion.”

The doctor was not a passenger because he had not reached the station. (June v. Boston da AJbcmy Railroad, 153 Mass. 79.) He had not even reached the defendant’s premises, being on Holland avenue when struck. But even if he had been a passenger, according to another Massachusetts authority, a provision in the pass exempting the company from liability for injuries resulting" from the negligence of its agents and servants is of no effect as against a statute by which damages are given to the widow and next of kin of a passenger whose death results from the negligence of the company or its servants. (Doyle v. Fitchburg Railroad, 162 Mass. 66.) In that case the court say (p. 70): “It is clear that a person may at "one time be an employee when passing over a railroad and at another time in passing over the same road be a passenger, though continuing all the while, in a popular sense, in the employment of the railroad company. The ticket on which the plaintiff’s intestate was riding was not a mere gratuity. It furnished part of the consideration by which he was induced to enter the employment of the defendant.”

The objectionable testimony was admitted, as appears above, over the repeated objections of the plaintiff’s counsel, who duly excepted and whose motion to strike out was denied. While the learned trial justice sustained the objection to the admission of a copy of the pass, the error was not thus cured, for all the earlier testimony as to the pass was in and must have had upon the jury an effect quite prejudicial to the plaintiff’s case.

I also think the court erred-in allowing the defendant to prove, the contract by which the deceased had agreed to attend surgically the employees and passengers of the defendant when called upon so to do by its officers and agents. Clearly such employment did not make him a fellow-servant, and at- the time of the accident he was going to attend one of his own patients.

For these reasons I think the judgment should be reversed and a new trial granted.

Hirschberg, P. J., Jenks and Rich, JJ., concurred; Bartlett, J.not voting.

Judgment and order reversed and new trial granted, costs to abide the event.  