
    Erastus D. Potter, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    November 17, 1909.
    Kailroad — negligence — collision at farm crossing—failure to give signals.
    Where a farm road crossing a railroad track, while not a public highway, had been in use for many years and the crossing was dangerous by reason of the fact that approaching trains could not be seen more than ten feet from the track, the jury may find the railroad negligent in running its trains at full speed over the road without giving signals, where the railroad company knew or ought to have known that for three days the road had been extensively used for hauling ice,
    
      The fact that the defendant acquiesced in such use of the crossing was tantamount to a license, and imposed upon it the duty of exercising reasonable care in order to safeguard those using the road.
    If the-use of a private road crossing a railroad becomes frequent and extensive to the knowledge of the railroad company, even for a short period, it must in some way give warning of approaching trains.
    McLennan, P. J., and Robson, J., dissented.
    Appeal by the plaintiff, Erastus D. Potter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 30th day of December, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Herkimer Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 12th day of January, 1909, denying the plaintiff’s motion to be allowed to go to the jury on the questions of fact, and granting the defendant’s motion for a nonsuit.
    
      Willard A. Rill, for the appellant.
    
      Charles E. Snyder, for the respondent.
   Spring, J.:

On the 30th day of January, 1908, one Gilbert, in the employ of the plaintiff, was drawing ice with the latter’s team and bobs from a pond of water on the farm of one Deimel to a milk station in the village of Herkimer. Twenty-five to twenty-eight teams had been engaged in this work for three days and the business occupied a week or more. From the main road leading from Herkimer to Middleville there was a road branching off to the south crossing the defendant’s tracks about one hundred and fifty feet distant from the turn and extending to the dwelling house on the Deimel farm, which was situate on each side of the tracks.

This was a road intended primarily for the benefit of the farm and to enable people to reach the house and other buildings. It had been in use for many years and the roadway was a beaten path. The road on one side of the track passed through a meadow which the occupant pastured in the summer and fall after haying, and at that time maintained a gate at the crossing to prevent his-cattle going on the tracks. At other times of the year the crossing was open and unobstructed, and the gate when there was readily removable. There were planks at the crossing and travel over it at times was considerable. In the summer, aside from the frequent use to and from the Deimel buildings, people went over it in picnic parties to the woods on the farm.

There was a small lake or pond on the farm and ice been cut from it in the winter for eight or ten years and drawn over this road and across the tracks. Gilbert approached this crossing at the time of the accident with a load of ice in cakes piled on a platform rack on the bob sleighs. As he came toward the crossing his view of the coming train was shut off until within ten feet of the tracks by a high embankment on top of which was a board fence about nine feet in height and erected to keep snow from the track and the spaces between the boards were only three inches. The drifting snow had piled up against this fence. Gilbert, when three rods from the crossing, stopped his team and listened. Hearing nothing, he whipped his team to get up the rise to the crossing and not until his horses were on the track was he able to see the train approaching at thirty or thirty-five miles an hour and only one hundred and fifty feet distant. He realized he could not cross in front of the train and backed and turned his horses, but did not get them clear of the track. The train struck one horse, piling the two in a heap and injuring them, and this action is by the owner of the hoz'ses to recover the damages sustained.

The evidence shows that no bell was rung or whistle sounded or any warning given of the approaching train, and apparently it was not the custom to give any signal warning at this crossing. The nonsuit was granted on the ground that this road “ was not a public highway, and they were not under any obligations to give any notice, except that they could not knowingly injuz*e you.” I think that strict rule does not apply to this case. We must take the existing situation; Twenty-five to twenty-eight teams had been going over this crossing for the three days preceding this accident. The ice harvest generally lasted more than a week. The nuznber of teams employed and the shoz’t trips znade passage over the tracks very frequent. The crossing was a dangez’ous one. An approaching train from the west could not be seen until the traveler was within ten feet of the tracks, and his teazn would then be upon them. The jury may have found from the evidence that the defendant knew, or should have known, of this open, notorious use of the crossing in the manner common at this time of the year, and that either the usual signals or some adequate warning should have been given by those in charge of approaching trains. Planks had been maintained at the crossing and the defendant had acquiesced in the, user of this crossing, and especially in hauling ice over it, which use, although temporary, was extensive during the week the work was in progress.

This use, assented to by the defendant, was tantamount to a license, and imposed upon it the duty of exercising reasonable care in order to safeguard those passing over this dangerous crossing. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; Byrne v. N. Y. C. & H. R. R. R. Co., 104 id. 362; Lamphear v. N. Y. C. & H. R. R. R. Co., 194 id. 172; Foley v. N. Y. C. & H. R. R. R. Co., 132 App. Div. 506; McGarty v. N. Y. C. & H. R. R. R. Co., 73 id. 34.)

Gilbert was not a trespasser. He was crossing the track lawfully and in a manner long permitted. There may have been no necessity for giving the usual warning signals at this crossing at all times, and we are not holding that the defendant was charged with any such obligation. The object of the signals at a crossing is to warn people intending to cross over of a coming train. If it is a private crossing and the use known and assented to by the railroad company beconies frequent and extensive, even for a short period, the defendant must in some way warn people when a train approaches." Permitting the use, it was charged with the duty of reasonable precaution to protect Gilbert and the other’s hauling ice over this crossing! The prevention of injury or death required it.

I think the case should have been submitted to the jury.

All concurred, except McLennan, P. J., and Robson, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  