
    Mary Endress, Adm’x, etc., v. The Lake Shore and Michigan Southern Railroad Co.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 3, 1888.)
    
    1. Negligence—Rule of law as to tiie duty of plaintiff. R is the duty of a person in crossing a railroad track to look and listen: for an approaching train; to look hoth ways for it, and to exercise all his-abilities to keep from danger.
    2 Same—Contributory negligence—Where the evidence is conflicting THE QUESTION MUST BE SUBMITTED TO THE JURY
    But where there is any conflict in the evidence as to the question of contributory negligence, or the question is not free from doubt, the negligence of a party must he submitted to the jury.
    3. Same—Pacts tending to show due care by plaintiff.
    The evidence showed that the train was going at the rate of from eight to ten miles an hour through a city, while the ordinances permitted a rate not greater than six miles per hour; that the accident occurred at about half-pastfive o’clock on a dark a"d misty evening; that plaintiff’s intestate’s team was between other teams waiting to cross the track; that these teams obstructed his view of the crossing. The evidence also showed that if he had seen the headlight of the engine it would have been impossible for him to tell which way the engine was going; and, further, that if he had actually known which way it was going, he might well have supposed it was running at a lawful rate of speed, which would have permitted his crossing without injury. Held, that these facts might fairly be submitted to the jury to determine whether the deceased used proper care and acted as a prudent man, knowing the dangerous character of the crossing.
    
      Fullerton, Becker & Hazel, for pl’ff; McMillan, Gluck & Pooley, for def’t.
   Titus, J.

This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new-trial.

It appears from the evidence that on the 10th day of December, 1886, the plaintiff’s intestate, while attempting. to cross the tracks of the defendant’s road on Louisiana street, in this city, was run over and killed by the engine of the local passenger train which leaves Buffalo about 5:30 o’clock P. M.

It is claimed by the defendant’s counsel that the verdict of the jury should have been set aside on the grounds:

First. That the negligence of the deceased contributed to the accident; and

Second. That there was no evidence to submit to the jury on the question of the defendant’s negligence.

Louisiana street runs north and south, and is crossed at right angles by the tracks of the New York, Lake Erie and Western Railway Company, the New York Central and Hudson River Railroad Company and the Lake Shore and Michigan Southern Railway Company. The accident happened about half-past five o’clock in the evening. It was a dark and misty night. The deceased was driving a one-horse 'lumber wagon, and coming down Louisiana street from the north, crossed the Erie tracks, and was signaled to stop by the flagman on duty at the crossing, the same flagman being employed by the Central and Lake Shore companies. The place where he stopped was between the tracks of the Erie and Central crossing, and was about forty feet wide. On his left, and to the east, was a double team, and on his right, and to the west, was a double team with a high box wagon, used for drawing grain or coal. He was sitting on some boards running lengthwise his wagon, facing the west. An engine on the Central track hacked down west across the street, towards the depot, with five sleeping coaches, making a train 310 feet long; it was going at a slow rate of speed, as fast as a man could walk. Cars were being switched' on the Erie tracks in the rear of where these teams were standing; bells were ringing, and three or four engines were in the immediate vicinity, making more or less noise from the escaping steam. After the cars on the Central track had passed by •the team standing to the east of the deceased started up and' crossed over in safety, and he followed close behind. The train was going, according to the estimate of some of the witnesses, at the rate of from eight to ten miles an hour, while the ordinances permitted a rate of speed of but six miles an hour.

According to the testimony of the witness Deacon, the gate tender for the Erie Company, the deceased could not be seen from the west side of the street, where the witness stood, by reason of the high box wagon which was on the westerly side of the street, and between him and the wagon on which the deceased was seated. The same witness says be saw no signal given by the flagman after the Central train passed, to the teams standing on the north side of- the track, of the approach of the Lake Shore train, while the-flagman and other witnesses testified that signals were-given to them to remain where they were.

It is not disputed that the teams on the south side of the Lake Shore track were notified of the approach of the Lake Shore train, and did not attempt to cross.

This brief summary of the evidence, it seems to me, does not as a matter of law, charge the deceased with negligence, but leaves the question in so much doubt and uncertainty, that the court could not have taken it from the jury I think it presents a fair question of fact for the jury to determine whether under the circumstances the deceased used proper care, and acted as a prudent man knowing the dangerous character of the crossing, would have doné, taking into account all of his surroundings.

It is claimed by the counsel for the defendant, that if the-deceased had looked to the west, in the directions from which the Lake Shore train was approaching he could have-seen it from the time it left Chicago street, about 1,000 feet distant, up to a short distance of Louisiana street.

I do not think the evidence necessarily sustains the claim. In addition to the fact that .the Central cars were passing immediately in front of him, his vision in that direction was necessarily more or less obstructed by the high box: wagon on his immediate right and it is a fair inference from the evidence that an unobstructed view could only be obtained from a point in rear of this wagon.

In addition to this, according to the testimony of the defendant’s witness Allen, “ a man would have to look considerably sharp to see,” that distance on such a night, and from seeing the headlight of the engine, “ it would be impossible to tell which way it was moving.”

If the deceased had seen the engine at that distance he might have very well supposed it was running at a lawful rato of speed, which would give him ample time, at that distance, to cross the track with perfect safety, before the-train would reach the crossing. Jetter v. N. Y. and H. R. R. Co., 2 Abb. Ct. App. Dec., 458.

The facts in this case are somewhat similar to those in Leonard v. N. Y. C. and H. R. R. Co. (42 N. Y. Supr. Ct. Rep., 225), Finklestein v. N. Y. C. and H. R. R. Co. (41 Hun, 348), and McGovern v. N. Y. C. and H. R. R. Co. (67 N. Y., 417), where the court held that it was for the jury to say, whether under the circumstances, the party was guilty of contributory negligence.

This is not a case where it can be said, as matter of law? that the plaintiff saw the train and attempted to cross the; track, and took the risk upon himself, as was the case in Smith v. N. Y. C. and H. R. R. Co., 19 Wk. Dig., 230. In that case it was admitted that the deceased saw the train coming and attempted to cross before it; there was no noise or confusion to distract his attention, hut after seeing the train he deliberately drove on to the track, and the court held there was no question for the jury to pass upon.

On the second proposition, I think the trial judge properly disposed of the question in submitting the negligence of the defendant to the jury for their determination.

Some question is raised by the evidence as to whether the bell was rung; some of the witnesses, who were in a position to hear, say it was not. And whether the flagman did all he should have done to warn the teams on .the north side of the crossing, after the Central train had passed, of the approach of the Lake Shore train, and whether the •defendant’s train was going at an excessive and dangerous rate of speed considering the darkness of the night and character of the crossings through a busy part of the city, were questions of fact for the jury, under proper instructions from the court, to determine, and I do not think error was committed in submitting them to the jury. 1 have carefully examined the cases cited by the defendant’s counsel in his brief, and they are in harmony with the well established rule adopted in this state, that where there is any conflict in the evidence, or the question is not free from doubt, the negligence of a party must be submitted to the jury. Bernhard v. R. and S. R. R. Co., 1 Abb. Ct. App. Dec., 131; Haycroft v. Lake Shore R. R. Co., 64 N. Y., 636; Hart v. Hudson R. Bridge Co., 80 id., 622.

The question, certainly, was not free from doubt, the evidence was by no means disputed and the jury were fairly warranted in finding with the plaintiff on both propositions.

I have not lost sight of the rule that a person must use his senses, must listen and look for the approach of trains, .and must act like a prudent man aware of the danger which confronts him. The jury were fully instructed in their duties by the court. They were told that before the •plaintiff could recover she “ must satisfy them by evidence that the deceased was not guilty of any negligence which contributed to his injury; that in all things he exercised proper care, and used his senses, and the means within his power to prevent coming in contact with this train' * * * he is bound to look and listen for an approaching train; he is bound to look both ways for it; to exercise all of his faculties to keep from danger or injury to himself.”

This is a vigorous statement of the law relative to the duty of a party seeking to recover for the negligent act of another, and the attention of the jury was called with directness to the question.

I have examined the exceptions taken by the defendant to the charge of the court and refusals to charge, as requested.

Whether the signal of the flagman was originally given on account of the approach of the Central train is not very material.

It is not disputed that the flagman gave a signal as the deceased approached the Central crossing, and that he stopped until it passed.

The court called the attention of the jury to the testimony of the flagman, in which it was stated that after the Central train had passed, he signalled the deceased of the approach of the Lake Shore train, and to remain where they were, and whatever train the flagman had in mind when he gave the signal cannot vary the. effect or throw light upon the understanding of the deceased as to its meaning. It does not appear that a different signal is used by the Lake Shore road than is used upon the Central at crossings; not knowing the signal was intended for a particular train, it could have had no influence npon the conduct of the deceased.

But one signal was given before the Central train crossed, and whether it was intended as a signal of the approach of one or both trains cannot, it seems to me, be very important.

The other exceptions relate principally to the two questions already discussed, and require no further notice.

The judgment and order appealed from should be affirmed, with costs.

Beckwith, Ch., J., concurs; Hatch, J., does not sit in this case.  