
    Milton Keech, Resp’t, v. The Rome, Watertown & Ogdensburgh R. R. Co., Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Railroads—Negligence.
    Plaintiff when approaching a railroad crossing stopped and waited for a quantity of cars to be removed therefrom. The road and tracks were side by side at that point, the crossing being an angular one. The engine stopped between plaintiff and the crossing, and upon inquiry by plaintiff he was told that it was all right, to go ahead. On his doing so, the engine, which was automatic, blew off steam and sounded the whistle,- which frightened plaintiff's horse so that it jumped in the ditch and injured plaintiff. The court charged that there was no evidence to show negligence of defendant’s servants independently of the representation made, but that such representation imposed on them the duty to refrain from so operating the engine as to make the crossing less safe than it led plaintiff to think it was. EM, no error; that the representation could not be held to mean only that the crossing was clear, but implied also the control of the engineer over his engine and its instruments of alarming sounds.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict of the jury upon trial at the St. Lawrence circuit.
    Action to recover damages alleged to have been caused by the negligence of the defendant
    On September 14, 1886, the plaintiff was riding in a buggy drawn by one horse on the highway and approaching the grade crossing over the defendant’s railroad just north of the station at De Kalb Junction. The highway and-the railroad tracks south of the crossing lie side by side in converging lines. The plaintiff stopped about 260 feet south of the crossing, which was then occupied by cars that were being sorted and shifted by means of an engine. After waiting about fifteen minutes all the cars had been moved away from the crossing, and the engine backed southerly toward the plaintiff, stopped on the track about, thirty feet nearer the crossing than the plaintiff then was. The plaintiff then called out: “ Is it all right so we can go ahead,” and some one on the engine replied: “ All right; go ahead.” The plaintiff moved forward, and when his horse and buggy came abreast of the engine, being then about forty feet from it and 280 feet from the crossing, the steam suddenly escaped from the pop-whistle, stopped, we'nt off again, then three “ toots ” of the whistle sounded, all in rapid succession. Steam escaped from the side of the engine and partly enveloped the horse. At the first sound of the whistle the horse sprang sideways into the ditch and plunged more with the successive noises; the plaintiff was thrown from the buggy and his leg broken. It appeared that the pop-whistle worked automathjally, and usually when the engine stood still, and that the defendant had given orders to the men operating the engine not to try to control it. The “ toots ” of the whistle were signals that the engine was about to move. It did not appear that the escape of steam from the sides of the engine was controllable.
    The defendant moved for a nonsuit at the close of the plaintiff’s testimony and renewed the motion at the close of the whole tes-. timony, upon the "ground that no negligence on the part of defendant had been shown. Both motions were denied The jury-found for the plaintiff.
    
      W. A. Dart, for app’lt; G. S. Conger, for resp’t
   Landon, J.

The learned trial judge in effect instructed the jury that there was no evidence tending to show any negligence of defendant’s servants with respect to the engine, regard being had to its use, if considered independently of the representation to plaintiff that it was safe for him to go over the crossing. But that this representation to plaintiff, made by defendant’s servants in charge of the engine, and upon which the plaintiff relied in proceeding to cross, imposed upon such servants the duty to refrain from so operating the engine as to make the crossing less safe than their representation led him to think it was. The learned judge said “ it was their duty, so far as they had control, to so manage the engine that it should not unnecessarily jeopardize the plaintiff, and that if they blew the whistle just as he came opposite them, and it was unnecessary to do so under the circumstances,” the jury might find that the defendant was liable.

This instruction proceeds upon the theory that the defendant was not to be made liable because it made the noises and performed the operations incident to its business, but because having given the plaintiff, who had waited some time to obtain it, an assurance of safety, it was its duty, if it was in its power, to refrain for the moment from unnecessarily doing any act to imperil his safety. This instruction appears to he reasonable, and is within the doctrine of Borst v. Lake Shore & Mich. S. R. R. Co., 4 Hun, 346; aff’d, 66 N. Y., 639.

The defendant contends that the defendant’s servants did no improper act, and omitted no proper one. If the operations of the engine were under their control, they could have suppressed the “pop whistle’’"and the “tooting” of the whistle. If the pop whistle was not under control, but worked automatically, and was liable to go off whenever the engine stood still, these facts were known to the engineer; the plaintiff was not shown to know them; the question would then be whether it was negligence to stop the engine in advance of the plaintiff, instead of in his rear, and tell him to go ahead without regard to the liability of the pop whistle to go off. ‘ The assurance of safety was made without reservation, and implied, we think, the control of the engineer over his engine and its instruments of alarming sounds. We think the case was proper for the jury, and that the defendant has no ground to complain of the manner of its submission.

The defendant’s counsel contends that the fair meaning of the words, “ All right; go ahead,” was that the crossing was clear. We do not think the court could hold that that was its only meaning, or that the jury ought under the circumstances to have held so.

There was slight cause to.charge the plaintiff with contributory negligence, and the verdict cannot be disturbed upon that ground.

The charge with respect to damages was carefully, and, we think, accurately made.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  