
    Henry Spannknebel, Jr., as Administrator, etc., of Mary E. Spannknebel, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Second Department,
    June 29, 1908.
    ¡Railroad — death of pedestrian at grade crossing — contributory negligence — when question for jury.
    On an appeal from a nonsuit at the close of the plaintiff’s case the appellant is entitled to the most favorable view which a jury might properly have taken of the evidence.
    Plaintiff’s intestate was struck by a south-bound train on a double-track railroad while crossing from the west to the east side of the tracks on a private way which had been maintained for many years. The deceased stopped when about four feet from the north-hound track and looked for an approaching train, then went forward toward the south-bound track about fifteen feet away and on reaching it was struck by a south-bound train and killed. There was evidence tending to show that at the place where the deceased stopped to look the train could not be seen more than one hundred and fifty feet away, though this-view became extended to about a half a mile as the south-bound track was approached.
    
      Held, that a nonsuit on the grounds of contributory negligence was error;
    That the law of negligence is not based upon the highest degree of care, nor even upon the degree of care which a highly prudent, person would use, but upon the average of reasonable care, and hence it was for the jury to say whether the deceased were negligent.
    Appeal by the plaintiff, Henry Spannknebel, Jr., as administrator, etc., from a judgment of the Supreme Court in- favor of the. defendant, entered in the office of the clerk of the county of Westchester on the 22d day of June, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 13th day of July, 1906, denying the plaintiff’s, motion for a new trial made upon the minutes.
    
      
      Gustav B. Hamburger, for the appellant.
    
      John F. Brennan, for the respondent.
   Woodward, J.

The plaintiff made a case which, in otir judgment, entitled him to go to the jury. The complaint having been dismissed at the close of plaintiff’s case, the appellant is entitled to the most favorable view which a jury might properly have taken of the evidence, and the theory on which the complaint was-dismissed, that the plaintiff had failed to show absence of contributory negligence, is not sustained by the testimony in this case. Plaintiff’s intestate was struck by a-southbound train on the defendant’s double-track railroad while crossing from her home on the west side of the tracks to a roadway on the east side, by means of a private crossing which had been maintained for many years. The plaintiff testified that his wife left the house to cross the tracks to overtake the witness’ mother-in-law, who had preceded her; that the witness called to. her to look out for the train; that the deceased stopped when about four feet from - the north-bound track and looked for an approaching train; that she then started forward toward the southrbonnd track,- about fifteen feet away, and that as she reached the south-bound track she was struck by the south-bound train and killed. There was some evidence that at the point where the deceased stopped to look the view was obstructed, so that a train could not be seen more than one hundred and fifty feet away, but that this view became extended to about half a mile .as the south-bound track was approached, and it appears to have been the theory of the court that it was the duty of the plain- . tiff to show that his intestate looked at a time when she could have seen the.greater distance, and that a failure to show this established contributory negligence as a matter of law. The fact of the plaintiff’s intestate stopping to look for a train when within four feet of the north-bound track, which was only about fifteen feet from the south-bound track, was some evidence of .care on her part; it showed that she had in mind the danger and the purpose to avoid it, and the mere fact that she was not shown to have stopped and looked again in passing over a space of fifteen feet is hardly conclusive against the right of this plaintiff. The law of negligence is not based upon the highest possible degree of care, nor even the degree of care which a highly prudent person would use, hut upon the average of reasonable'care; the degree of care that twelve men, selected at random from the vicinage, will say is reasonable under all'the circumstances. It is well established that where the facts are such that reasonable-minded men might differ as to what is reasonable care, it is the duty of the court to submit the. question to the jury, even in a case where the court might feel that it was its duty to set aside a verdict, and we are of the opinion that this was a case in which the plaintiff had some evidence to support his cause of action, and that the jury should have been permitted to pass upon it.

The judgment and order appealed from should be reversed anda new trial should be granted, costs to abide the event.

Jenks, Hooker, Gaynor, and Bich, JJ., concurred.

Judgment and order reversed and new trial gi’anted, costs to abide the event.  