
    Charles A. T. Rodrian, Adm’r, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App”lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    1. Negligence—Railroad crossing.
    The deceased was slowly walking on rough ground, and there were obstructions in the direction from which the train came which caused her death, and a gravel train was passing which made considerable noise. No bell was rung or whistle blown. Held, that although there was no direct evidence that she looked both ways before attempting to cross, the questions of negligence were properly submitted to the jury.
    2. Same—Discontinuance of street.
    The fact that a street has been discontinued by resolution, but not practically closed, does not relieve a railroad company from giving the statutory signals on approaching it, where such discontinuance was conditional upon the railroad opening and preparing another road for travel.
    Appeal from judgment in favor of plaintiff entered upon a verdict, and from order denying motion for a new trial.
    Action to recover for the death of plaintiff’s wife caused, as alleged, by defendant’s negligence.
    
      Arthur T. Hoffman, for app’lt; Henry W. Taft, for resp’t.
   Pratt, J.

The most doubtful question in this case is whether or not the case ought to have been dismissed for a failure of sufficient evidence that the deceased exercised due care before attempting to cross the railroad. The rules of law are too familiar and well settled to require any but the briefest statement here.

The law required the deceased to use all the care that a prudent person, conscious of the danger to be apprehended, would ordinarily exercise. This rule requires a vigilant use of the eyes and ears in looking and listening for approaching trains. But there is another rule in reference to the question of contributory negligence, which we think this case fairly falls within, to wit, where there is any evidence, direct or inferential, of care and caution on the part of the person injured, it becomes a question of fact for a jury to determine.

The deceased was walking, slowly picking her way along over a very rough course; there was the noise of a gravel train to attract her attention and in the direction from which the train that struck her was approaching there were various obstructions to cut off her view.

Considering all the circumstances we think the inference might be drawn that the deceased was exercising due care. She was in the prime of life and well acquainted with the locality and of the danger to be apprehended in crossing the railroad. She was approaching it deliberately and carefully, and we must assume possessed the ordinary instinct of self-preservation and fear of injury. The omission of defendant to ring the bell or blow the whistle as required by law was an assurance of safety and has an important bearing upon the conduct of the plaintiff, and must be material in estimating the amount of care the deceased should have observed.

It is urged in this case as it was in the case of Smedis v. The B. & R. B. R. R. Co., 88 N. Y., 13, that inasmuch as no witness testifies that the deceased looked both ways for an approaching train it must be assumed .that she did not and that such omission was negligence on her part. It was held in that case that this rule only applied in cases where if a party had looked and listened he might have seen or heard the approaching train.

In this case there is abundant proof of obstructions in the direction from which the train was coming, and considering the passing of the gravel train, and the absence of any sound of bell or whistle, the deceased might well be likely to fail to hear the coming train even had she listened.

We think it was a question for the jury to determine whether the intestate exercised proper care under all the circumstances of the case.

There was sufficient proof of the defendant’s negligence to warrant the submission of that question to the jury.

We are of opinion that the fact that Grade street had been discontinued by resolution of the commissioners of highways, but not practically closed, did not relieve the defendant from the statutory duty of giving warning upon the approach of trains at this crossing. The discontinuance was conditional upon the defendant’s opening another road and preparing it for travel; until this was done, Grade street was to be used as a public street.

There was no error in the charge of the judge; in fact, it was quite as favorable to the defendant as the facts warranted. Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  