
    Frank Lockwood, Respondent, v. The Poughkeepsie and Eastern Railway Company, Appellant.
    
      Negligence — the rule of law, that a person approaching a railroad crossing must listen and look, not extended.
    
    The rule that a person approaching a railroad crossing must employ his senses of hearing and seeing to avoid danger, and that if this is not done, he is negligent as matter of law, will not be extended by the courts so as to require him to determine whether, under the circumstances presented by the particular case, the danger is so imminent that unusual measures are necessary to avert it, and to require the court to hold that the omission to employ them constitutes legal negligence.
    Appeal by the defendant, The Poughkeepsie and Eastern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Dutchess on the 25th day of June, 1897, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of July, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank B. Lown, for the appellant.
    
      Carroll Whitaker [John J. Linson with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff in this action was employed as a motorman on the Poughkeepsie and Wappingers Falls Electric Railway Company, whose line of railroad crossed the tracks of the defendant at grade, nearly at right angles, at a point near a building known as Reynold’s Elevator, on North street, in the city of Poughkeepsie. While engaged as such motorman on the 5th day of March, 1897, the car being operated by the plaintiff was struck by a car, connected with an engine being operated by the servants and employees of the defendant, and the plaintiff was seriously injured in the collision. The case came on for trial at the Dutchess County Trial Term of this court, and' resulted in a judgment for the plaintiff in the sum of $1,000. From this judgment, and the order denying the motion for a new trial, the defendant appeals to this court.

While it seems to us clear that a person in the position of this plaintiff was peculiarly obligated to rise the utmost degree of care, we are unable to see our way clear to disturb the finding of the jury or to grant a new trial. As was said by Church, Ch. J., in the case of Dolan v. Delaware & Hudson Canal Co. (71 N. Y. 285): There may be cases where a higher degree of vigilance might be regarded as proper, but those are exceptional cases which must be left to the jury upon the facts. It is a general rule that care coim mensurate with the danger must, be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised. Courts have held that a person, in approaching a railroad crossing, must employ his senses.of hearing and.seeing to avoid danger;, and, if not done, he is negligent as matter of law. Beyond this courts cannot go without usurping the province of the jury to determine questions of fact. The learned counsel- argued that it was the duty of the plaintiff, under the circumstances presented, to 'have stopped his horses and gone forward to see if a train was approaching. Concede that common prudence would have required this, how is it possible to make it a question of law ? It involves the consideration of all the surrounding circumstances, the extent of the obstructions, the time of day or evening, the extent of the light afforded by the street lamps, the frequency and usual rapidity of the trains at that -point, the absence of the flagman, the time it would take to cross the track, involving the nature and character of the establishment used by plaintiff, and the proper inferences to be drawn from all these facts.

“ How can the court say, as a. legal conclusion, that the danger was so imminent that the unusual measures suggested were necessary to avert it, or that the omission to employ them was legal negligence ? If a person does not look to see if a train is approaching when looking would discover it, the law will be applied to the fact. In such a case there is nothing for the jury to determine — no inferences to be drawn — no judgment to be exercised; the fact being established, it is the duty of the court to declare' its legal significance. But, whether exceptional circumstances are such in a given case as to require additional and unusual precautions, and if so, what precautions, is widely different, and necessarily calls for inferences and the exercise, of judgment, as to which impartial men might differ, and hence must be determined by the jury.”

The reasoning of the learned court in this case seems to us to preclude the contention of the defendant, and we see no way in which it may be relieved from the judgment rendered against it at the Trial Term.

The judgment and order appealed from are affirmed with costs.

Cullen, J., absent.

Judgment and order unanimously affirmed, with costs.  