
    Julia Gurrie, as Administratrix, etc., of Michael Gurrie, Deceased, Respondent, v. The New York and North Shore Traction Company, Appellant.
    Second Department,
    May 24, 1912.
    Railroad—negligence—collision causing death of teamster — proof not establishing negligence.
    Action to recover for the death of a teamster who was struck and killed in the night time by a trolley car in a sparsely settled district while he was endeavoring to extricate his vehicle from the defendant’s right of way where it had become stalled. Evidence examined, and held, that the plaintiff failed to establish the negligence of the defendant.
    A motorman driving a trolley car on tracks from four to six feet from the main highway on which there were no crossroads and only one house within a distance of a mile, is not bound to have his car under the same control as is required in populous districts having intervening streets at short intervals.
    Appeal by the defendant, The New York and North Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of May, 1911, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      James A. MacElhinny, for the appellant.
    
      George F. Hickey [M. P. O’Connor with him on the brief], for the respondent.
   Woodward, J.:

On the kith day of October, 1910, at about seven-ten p. M., the plaintiff’s intestate was driving a team attached to a heavy load of lumber on the North Hempstead turnpike between Great Neck road and Little Neck road, near Manhasset, Nassau county. The defendant operated an electric surface railroad upon the highway, and at this particular point the tracks were placed at the south side of the highway, which was about 60 feet in width. The roadway is macadamized for a space of about 18 feet in the center, and between the macadam and the first rail of the defendant’s railroad there was a dirt apron about 4 or 5 feet wide. Between Great Neck road and Little .Neck road is a distance of one mile, and in that distance there is no street or highway crossing North Hempstead highway, and on the south side of the roadway there is not a single house, and but one on the northern side. The night of the accident was very dark and it was raining a fine rain, and at the time of the accident there were no street lights burning in that locality. ' Michael Gurrie, plaintiff’s intestate, as we mentioned, was driving a team on this highway heavily laden with lumber, and he was accompanied by one David Levi, who was likewise driving a team, with the same burden. These teams were en route from Brooklyn to Roslyn, going east, and neither of them was provided with a lantern. Plaintiff’s intestate was accustomed to driving over this highway and knew the road. The turnpike, going east from the city line, is up grade to the point of the accident, and continues up grade to the top of the first hill beyond the point of the accident, a distance stated. by the appellant to be 375 feet, and by the respondent to be 478.40. From the brow of the hill the highway drops down for a space of about 700 feet, at which point it is something over 15 feet below the top of the first hill, and it then rises for a distance of about 900 feet to an altitude of something over 52 feet. Gurrie, on the night in question, had driven his team off from the macadam, across the dirt wing, and Jhad one of the wheels of his wagon over the northern rail of defendant’s track, when he stopped to rest his team. When he tried to start he discovered that his wheel was in a rut and obstructed by the rail, and the team was unable to move the load. Levi, discovering his position, came up to advise and help, and finally drove his own team from the rear of Gurrie’s wagon to a position in front, where he attached a rope to Gurrie’s wagon and attempted to draw the load out, but without avail. At this stage one Dietz came along with another team, supplied with a lantern, and finding the plain- . tiff’s intestate in trouble, took hold and attempted to assist. Gurrie’s wagon had been in this position for about half an hour, and. while they were at work in. an effort to extricate him, Dietz saw the defendant’s car coming from the east on top of the second hill, about three-quarters of a mile away. The car stopped at Great Neck road, about half a mile away, and then came on toward the scene of the accident. ■ Dietz told the men that the car was coming and to get the mules out of the way. Levi saw the car at the same time. Dietz said, someone better go down and stop her.” Levi shouted to Gurrie that “ the trolley was coming, get them loose.” Gurrie responded that he could not get the rope loose; it was too tight. At that time the car had not come over the nearest hill, less than 500 feet away; they could see the light of the car as it went down into the valley and came up the' nearest hill. Obviously the defendant’s motorman had no reason to anticipate this situation. The improved part of the highway was 4 to 6 feet from the track which he was using, there were no crossroads, or roads running into the highway between the two main roads above referred to, and only one house in a distance of one mile. Under such circumstances, he was not bound to have his car under that control which is demanded in populous districts, with intervening streets at short intervals, and the practical operation of suburban lines, the demand for rapid transit, all warrant the operation of cars under these conditions at a high rate of speed.

With the plaintiff’s intestate and the other two men at work to get the wagon free from its position right down to the time when the defendant’s car came over the hill, less than 500 feet away, neither Gurrie nor any one of the men appears to have made a move to give the defendant any notice of their situation, and it appears from the record that there was a slight curve just as the car came over the hill, so that the lights which illuminated the tracks for a distance of 200 or 300 feet ahead, would not follow the tracks until the car had been brought around to the straight line. After this car was in sight for the second time, and less than 500 feet away, with a down grade in front of it, Dietz appears to have run toward the car, swinging a lantern, and he says he had reached a point 25 to 50 feet from the front wagon, which was fastened to the second by a' rope and standing at nearly right angles to the track, when the car passed him, and a moment later collided with the rear wheel of the front wagon and then passed on a few feet, where it hit the mules, killing one of them, and came to a stop without any serious injury tq the car, and without in any manner injuring any of the passengers, or, so far as appears, jarring them to any great extent. Certainly, if this car was running at the rate of thirty miles per hour, and had not slackened its speed at all at a distance of 50 feet from the first wagon, it could hardly have been stopped in the short distance remaining, without more serious results than the testimony discloses. The wagons were not tipped over, nor, with the exception of the crushing of the wheel of the first wagon, does there appear to have been any serious damage to either of them.

If the car was being operated at thirty miles per hour, and it seems improbable that it was, the time that it would take to traverse a distance of five hundred feet was not a long time to give notice of the situation to the defendant. The fact that Dietz ran a distance of fifty feet, swinging a lantern (and this is probably twice the distance he actually ran, for he places it from twenty-five to fifty feet), was not notice to the defendant that the plaintiff’s intestate, with his team, was fastened in the tracks. The night was dark and rainy; the glare of his headlights and the watching of his slippery tracks would naturally confine his vision to. the space illuminated by his headlights, and he might not see an ordinary hand lantern at the first moment that it was displaj^ed, or be, able to comprehend its meaning on the instant.. The first and most natural impulse would be to accept it merely .as a signal to stop to take on a passenger, or it might be easily understood that he might properly regard it merely as someone passing along the highway, and, until the demonstration became visible and obviously intended to convey a warning of danger, he would not be negligent in not applying his brakes and making an effort to stop. The undisputed evidence is that as soon as the motorman saw and comprehended the warning, he applied his brakes and made every effort to stop, but the car'was running on a down grade, on a wet, slippery track, and ás' we read the record there was no evidence that this car could, under the circumstances, have been stopped within the distance that must have intervened after the warning was given. The car weighed twenty-four tons, and even if running only at eight or nine miles an hour upon a down grade, upon a wet track, would be very difficult to stop in a short space, and if every traction car traversing a suburban highway on a dark night was to be stopped every túne a lantern appeared in the highway, there would be more complaint than at present about the delays in transportation. We fail to discover the negligence of. the defendant.

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

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  