
    Emma Feldman, as Administratrix, etc., of Pauline Crossman, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    January 25, 1911.
    Railroad — negligence — death of one trespassing on railroad bridge — rights of trespasser — wanton injury — facts, justifying recovery — contributory negligence.
    Although a person trespasses upon a railroad bridge in disregard of his own safety and in defiance of the law of this State (Railroad Law, § 88), the railroad company has no right to injure him intentionally, recklessly or wantonly. The engineer of an oncoming train, after discovering the peril of such trespasser, is under the duty to use reasonable care and diligence to avoid injuring him.
    Evidence in an action to recover for the death of a woman who was killed by a train while trespassing upon a railroad bridge examined, and held, sufficient to support a finding that the engineer was reckless in the management of his train after discovering the dangerous position of the decedent.
    There can he a recovery for a death so caused although the decedent, who entered upon the bridge before the train was in sight, he guilty of contributory negligence as a matter of law in trespassing thereon, if the engineer on discovering her whereabouts, drove his engine ahead regardless of consequences. McLennan, P. J.', and Robson, J., dissented.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment;.of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 26th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles T. Titus, for the appellant.
    
      George W. Driscoll, for the respondent.
   Kruse, J.:

Plaintiff’s intestate and her husband were walking along, the defendant’s railroad ‘track. They came to a bridge, went upon it, and when nearly across were overtaken by a train and killed. It must be conceded at the outset that in walking upon the track they did so not only in disregard of their own safety, but in defiance of the penal law of this State (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 53, as amd. by Laws of 1892, chap. 676; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 83). But although they were trespassers, the defendant had no right to intentionally, recklessly or wantonly injure them. (Keller v. Erie R. R. Co., 183 N. Y. 67.)

The trial court charged, and the law seems to be and is so conceded by appellant’s counsel, as I understand his position, that after the engineer discovered the peril to the deceased he was required to use reasonable care and diligence to avoid injuring her. (Remer v. Long Island R. R. Co., 36 Hun, 253 ; 48 id. 352; affd., 113 N. Y. 669; Neuberger v. Long Island R. R. Co., 131 App. Div. 885 ; White v. N. Y. C. & H. R. R. R. Co., 20 N. Y. Supp. 6.)

It is urged, however, on behalf of the railroad company, the defendant, that the evidence is insufficient to sustain the finding that- the defendant’s engineer did not use reasonable care to stop his train and avoid the collision.

■ After the plaintiff had rested and she was about to be nonsuited the •engineer was called and sworn as a witness in her behalf. By his testimony it appears that he discovered the persons upon the track ahead of him when he was 1,000 feet from the bridge, but he was unable to determine at first that they were on the bridge. He blew the whistle, the persons stopped, turned around, looked toward the train and started-to run. He then concluded that they were on the bridge and in danger,, and, as he claims, immediately did everythinlc he could to stop the train, applying the emergency brake, sanding the track and blowing the whistle continuously. The persons were then about two-thirds of the way across the bridge, and the bridge was about.370.feet long.

The plaintiff rests upon the engineer’s testimony as to how far away the persons were when he first discovered them on the track, but contends' that the engineer did not stop liis train as soon'as he could after he knew that the persons were on the bridge and in a perilous situation. That contention is based upon the testimony of other witnesses and the surrounding circumstances. The engineer testified that between the time he first discovered the persons on the track and when he concluded that they were on the bridge was about five seconds, and that the train was going at the rate of about a mile a minute. Going at that rate the train would go about 440 feet, leaving it.then about 560 feet from the bridge. But the testimony of other witnesses indicates that the train was going but twenty-five to thirty-five miles an hour, which would leave the train about 300 feet farther away from the bridge, and the train could b¿ stopped within 600 or 700 feet.

The persons were struck at about the west end of the bridge, and the engine was stopped about 400 or 500 feet, or even farther, beyond that point. There is also testimony to the effect that the brakes were not applied until at about the time the engine struck the bridge, and then only lightly, and again and with more force when the train was about half way across the bridge. It is, there-fore, argued that the engineer did not apply the brakes as soon as he discovered that the persons were unable to escape from their perilous situation, and that he failed to exercise reasonable care to avoid the collision, and that such failure was in wanton and reckless disregard of the duty which he owed to the deceased, although she was a trespasser.

I confess that I have some doubt that the engineer was at fault within the rule to which I have adverted. There is much force in the suggestion that at most he erred in judgment. It seems almost incredible that he would continue to drive his engine heedless of the peril of the persons upon the bridge, with the knowledge or belief that they could not escape in time to avqid the collision. But I must say that if the testimony of the engineer as to when he discovered that the persons were upon the bridge and in danger is true, and his testimony as to what' efforts he thereafter made to stop his train is discarded as unreliable, and that of the other witnesses for the plaintiff taken as true, the finding of the jury that the engineer was reckless is not without support.

But it is said that although the jury found that the deceased was free from contributory negligence she was negligent as a matter of law in going upon the bridge, and, therefore, that alone is sufficient to prevent a recovery. That conclusion does not necessarily follow. If the engineer was reckless and her entry upon the bridge was not a proximate, contributing cause to the collision which resulted in her death, the defendant may still' be liable. As has been seen, when the deceased entered Upon the bridge the train was not in sight and she was unaware of its approach. -When she was half way or more across the bridge the engineer saw her. He. blew the whistle; She became aware of the approach of the train. She ran.- The engineer knew her peril; ' His train overtook, her and caused her death. ' He had no right under such circumstances to drive his engine ahead regardless of consequences. Human life was at stake and he was required to. use reasonable care to avoid the collision, even to stop his train if necessary; and, if he did not, his conduct was reckless and the defendant, is liable notwithstanding the'fact-that the deceased, was a wrongdoer in going upon the bridge and a trespasser up 10 the very time that she was struck.

It should also be stated- in this connection that the charge relating to contributory negligence seems to' be satisfactory to the defendant as no -criticism is made of it and no exception taken thereto on the trial.

The: judgment and order should be affirmed, with costs.

All concurred,, except McLennan, P. J., and Robson, J.,. who dissented; McLennan, P. J., dissenting On the .ground that as matter of law plaintiff’s intestate was guilty of contributory negligence, and that, therefore, under the authority of Rider v. Syracuse Rapid Transit R. Co. (171 N. Y. 139) defendant was not liable because of the failure of its. engineer to exercise ordinary pare -and prudence, which' was the only issue submitted to the jury bearing. Upon defendant’s negligence.

Judgment and Order affirmed, with, costs.  