
    Kain v. New York & N. E. R. Co., (two cases.)
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Railroad Companies—Accidents at Crossings—Contributory Negligence.
    Where one, in approaching a railroad crossing, drives slowly, and listens for a train, he is not, as matter of law, guilty of contributory negligence because the track is open to nis vision for 300 feet, and he does not see an approaching train until it is within 100 feet from him, its speed being such that it passes the 100 feet in three seconds.
    
    2. Same—Instructions—Degree op Care.
    In an action for injuries sustained at a railroad crossing, a refusal to charge that plaintiff was bound to use extra precaution and vigilance in approaching the crossing, is not error.1
    Appeal from circuit court, Dutchess county.
    These actions are by Thomas Kain and William Kain, respectively, against the New York & New England Railroad Company, for personal injuries sustained while attempting to cross defendant’s track. Judgments were entered for plaintiffs, and defendant appeals.
    
      Argued before Barnard, P. J., and Pratt, J.
    
      W. O. Anthony, for appellant. W. I. Thorne, for respondents.
    
      
       Respecting the duty of the traveler to look and listen before crossing a railroad track, and as to what is contributory negligence in actions for injuries received at such crossings, see Howard v. Railway Co., 1 N. Y. Supp. 528, and note; Buchanan v. Railroad Co., (Iowa,) 39 N. W. Rep. 663, and cases cited; Fitzgerald v. Railroad Co., ante, 230, and note.
    
   Pratt, J.

We do not find that plaintiff was guilty of contributory negligence. He drove slowly, and listened for the train. He was not obliged to stop. Hegligence is claimed on the ground that, having a track open to his vision for 200 feet, he did not see the train till it was within 100 feet of him. At the then rate of speed the train would pass that 100 feet in about three seconds. So the criticism amounts to this: that plaintiff failed to see during three seconds that it was within his range of vision. But his team may well have required some attention, and we cannot say as matter of law that to withdraw his gaze from the track during three seconds was contributory negligence. That question was for the jury, and their verdict must stand.

The court was requested to charge that plaintiff was bound to use ‘.‘extra precaution and vigilance in approaching the crossing. ” The appropriateness of the request is not perceived. He was bound to use due care,—such care as the circumstances and law required,—and we must assume that the jury were charged to that effect. If “extra cam” meant anything more or different from “due care, ” the request was properly refused. Judgment affirmed, with costs. ■

Barnard, P. J., concurs.  