
    Abram R. Kelsey, App’lt, v. Staten Island Rapid Transit Railroad Company, Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894)
    
    1. Negligence—Railroad crossing.
    A person is not required, as a question of law, to stop his horse or get out of his wagon and go upon the track and look before attempting to cross at a place where it cannot be seen except when one is only a few feet distant.
    2. Same—Contributory.
    Under the facts and circumstances of this case, it was held that the question of contributory negligence should have been submitted to the jury.
    Appeal from a judgment dismissing the complaint.
    
      Adelbert B. Carroll, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Brown, P. J.

This action was to recover for injuries received in a collision with a train on defendant’s road at a highway crossing. There was evidence which would have permitted, the jury to have found negligence upon the part of the defendant. The complaint was dismissed upon the ground that it also showed contributory negligence upon the plaintiff’s part. The law required of the plaintiff that degree of care and caution which prudent per-, sons of ordinary intelligence usually exercise under like circumstances. Parsons v. N. Y. C. & H. R. Railroad Co., 113 N. Y. 355; 22 St. Rep. 697. And it is only when it clearly appears from the evidence that the party’s own act or neglect contributed to his injury that the case can be withdrawn from the jury. It is not enough to show that it w.as possible for the injured party to discover the train, but the question always is whether the care exercised was that which an ordinarily prudent and intelligent person would exercise under similar - conditions. I think the case should have been submitted to the jury. .The accident occurred on September 12th, between seven and eight o’clock in the morning. The plaintiff was driving a milk wagon having a wooden" top, with sliding side doors, which were open at the time of the accident. He was familiar with the crossing, knew its dangerous character, and knew that a train was due about the time of the ' accident. He was going north towards the track, and the colliding train was approaching from the east. For 1,320 feet east of the crossing the track ran through a cut fifteen feet in depth at the crossing, and running, out until it reached the level ground. The street ran through a cut for 300 feet south of the crossing, and for that distance a view of the track was obstructed to a person approaching from the south until within thirty feet of the track, when he could see 350 feet to the east. The plaintiff testified, as to the accident, as follows: “When I was up the road, where we could see, I looked to see if I could see the train. I could not see it or hear it. I listened, and my horse walked slowly down the hill. I listened all the way down the hill. I did not hear it whistle or ring a bell. When I got down within a few feet of the track, I listened with my head out on the side of the wagon. I did not hear any sound of a train. Then I started my horse right on the track. I was struck by the train. Until the horse’s head was on the crossing, the obstruction was such that no one could see an approaching locomotive at all.”

The seat occupied by the plaintiff was in the rear of the wagon, back of the doors, and the horse was on a walk. It is apparent from the evidence that when the plaintiff reached a point within thirty feet of the track, where from his seat he could look up the track to the east, his horse’s head was within a few feet of the rails. The horse crossed the track, and the engine collided with the wagon. It is entirely credible, therefore, that plaintiff did not see the trajn when he listened with his head out of the side of the wagon at the point thirty feet from the .track, and that, while his horse walked the distance of thirty feet, there was time for. the train to reach the crossing. It cannot be said, as a question of law, that .plaintiff should have stopped his horse, or gotten out of his wagon, and gone upon the track and looked, before attempting to cross. While the vigilance of a traveler must be proportioned to the known danger, it is also limited by usual and .ordinary signals and evidence of danger. Weber v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 454-456. The defendant had created a dangerous crossing, and then omitted all notice of the approach of trains. The plaintiff had listened for the usual signals while he passed slowly over a distance of 300 feet, and heard none. He looked at the first point where he had a view of the track, and saw no danger.. It was possible for him to have discerned the train if he had gotten out of the wagon and gone upon the track, but whether it was negligent for him to omit that precaution was a question for the jury, not for the court. Whether his conduct was that of,an ordinary prudent and cautious man was a fact to be determined by inference drawn from the evidence, and the question was for the jury. The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.  