
    COURT OF APPEALS.
    John Besiegel, appellant agt. The New York Central Railroad Company, respondent.
    The want of caution which constitutes negligence in crossing a railroad, must in any given case, depend upon the circumstances under which the party is placed at the time.
    The object of requiring an engineer upon a railroad engine to sound an alarm before reaching the crossing, is to put the way traveller on his guard; and when the engineer neglects the necessary signals, he deprives the traveller of ono of the means upon which he has a right to rely for protection against tha danger of a collision.
    When a man oh foot reaches a point near the crossing of a railroad in a populous part of a city, and' listens and hears no signals or warning, he' is not guilty of negligence for attempting to cross over the track, where he cannot see up and down the track by reason of obstructions.
    
    Rut the railroad company ought not to he held liable for a collision in such a case, when they run them locomotives with moderate speed, and make the usual signals before reaching the crossings.
    Where the plaintiff undertook to "cross a railroad in a populous part of a city, over five tracks running east and west in a straight direction, just after a train of cars had passed from the west, in which direction there was nothing to obstruct his vision, but eastwardly his vision was obstructed, except about ton feet, by freight cars which stood near him on the two first tracks, and hearing no hell or whistle, he stepped upon the third track without looking east at all, but continued to look to the west, and before crossing, was hit and injured by a locomotive hacking down from the east at a rapid rate :
    
      Sdd, that the question of the plaintiff |s negligence was one for the jury, and that a non-suit in the case was improperly granted.
    Ji seems, that way travelers in crossing railroads, especially in cities, where obstructions to sight are frequent, have a right to depend upon their hearing as well their vision for protection in crossing.
    
    
      
      March Term, 1866.
    Appeal from judgment of general term, affirming order of non-suit at circuit.
    The plaintiff sued the railroad company for damages, for negligently running a steam engine against him, while crossing a track on St. Joseph street, in city of Eochester.
    The evidence shows that the plaintiff was passing on the east side of South St. Joseph street, from north to south, when he saw a long train coming up from the west, and he waited until it had passed. He stood on the second track on the sidewalk. There are five tracks, and the two north tracks were filled with empty cars, ten or twelve in number on each track, on the east side, and near to the sidewalk. When the long train had passed, making a good deal of noise, the plaintiff started on, looking to the east as far as he could see, and the track was clear as far as he could see.. He then turned his head to the west as he started to go across the tracks, and while crossing, an engine coming from the east, struck him on the shoulder and caused the injury. He did not hear the bell ring, except in the long train, and no flagman was there at the time.
    The plaintiff had ‘crossed the "track often before this. He was standing on the second track when the long train passed, and remained there a minute and a half or two minutes. The empty cars which were standing on the first and second tracks, were so near him, that he could touch them with his hand. The first step he took, he looked east, but did not look eastward again, after he got over the south rail of the second track. He was looking west all the while after that, until he was struck by an engine backing down from the east. He could see down the third track about eight or ten feet, when he looked east, which was before he stepped over the south rail of the second track. It was conceded that the tracks are straight at this point. The empty cars that stood near the crossing were box freight cars, eight feet high.
    The engine that struck him was running very* fast leaving the Eochester depot; and the evidence tended to prove that the bell on the engine was not rung until after the accident. The engine that struck the plaintiff, was on the third track, and the engine tender projected over the track eighteen inches. The freight cars projected over the same distance. It also appeared that St. Joseph street is in a populous and thickly settled part of the city. By the map, it appears that the five tracks at this point, cross St. Joseph street at an obtuse angle, so that a person crossing from the north to the south side of St. Joseph street, could not see an engine approaehing on the third track from the east, standing where the plaintiff did on the second track, with freight cars on the first and second track to intercept bis view.
    The court non-suited the plaintiff, upon the ground that it was his duty to have looked, and ascertained before attempting to cross the railroad; that he could safely pass the same, and that it was negligence in him not to do so.
    George F. Danforth, for appellant
    
    T. R. Strong, defendant.
    
    
      
       If the plaintiff in this case had practiced upon this theory, it would seem that he ought to have avoided injury ; for it is very difficult to understand that the locomotive running at a rapid rate should not havo mado sufficient noise to have been heard by him a distance of some forty or fifty feet.
    
   Morgan, J.

Upon the undisputed facts of the case, the plaintiff could have avoided the accident by exercising a little more precaution before he stepped on to the third track. If the freight cars had not intercepted his vision, he must have seen the engine approaching from the east, in time to have avoided the collision.

It is said that common prudence required him to put himself in a position to see whether there was a train coming from the east on the third track, before he attempted to cross it. The evidence, however, tended to show that the railroad company was guilty of great negligence in backing down at so rapid a rate of speed across South St. Joseph street, without any flagman to warn foot passengers of their danger, or without sounding an alarm from the engine. With their cars standing upon the track so near the crossing, the company was guilty of inexcusable negligence in omitting to take the usual and necessary precautions to prevent accidents.

As an original proposition, it seems to me, that the omission of a railroad company to sound an alarm when approaching a crossing, especially when the view is obstructed by. intermediate objects, is some excuse for the inattention of a. way traveler to the danger of an approaching train. The way traveler depends upon his ears as well as his eyes, and. when his vision is obstructed, and he is within a few feet of the track, and hears no alarm, it. ought not to be thought very hazardous to step across the track. H he hears no signal, he-does not expect a train to cross his path when he-has but a few feet to go to cross over, and if he for greater precaution, stops and looks both ways before he makes the-last step to reach the track, he exercises more precaution, than a majority of our citizens do in similar circumstances.

The doctrine which requires travelers, in all cases to stop and look both ways, when approaching a railroad track, presupposes that railroad companies are guilty of violating their duties to such extent as to make it a matter of course, to expect a train to run over the streets of a city.under full' headway at any time, without signals or safeguards.

When the vision is obstructed, as in the case at bar, the way traveler generally listens to hear the alarm, and if none is given, it is not, or at least ought not to be, presumptuous in him to suppose that he can walk over the track with "safety. He has a right to believe that the engineer will not run his engine with such dangerous speed, without ringing the bellj or sounding the whistle.

It is not sufficient to defeat this action, to say that in another case the plaintiff was non-suited, because he failed to look, both ways before attempting to cross the track of a railroad. The want of caution which constitutes negligence must in any given case, depend upon the circumstances under which the plaintiff is placed at the time.

If the tracks had been clear, so that the plaintiff could, have seen the approaching engine, then doubtless it would be negligence in him not to have seen it. So much must be conceded as settled by the adjudications in this state.

It is said the plaintiff ought to have known from the number of tracks that such a thing was likely to happen as did. happen in this instance, and as it happens probably very, often. ¡But this supposes that the railroad company very ■ often backs down an engine upon their tracks across St.,, Joseph street, in a crowded part of the city at a rapid rate-of speed, without a flagman at the crossing, and without giving any signal whatever of its approach. For if the-usual signals are given, which the most ordinary prudence-requires in such a case, it is not to be expected that such a. thing will very often happen as did happen in this ease. It involves a gross violation of duty on the part of the railroad company, and for that reason such a thing ought not-to be expected -by the way traveler. .The very object of requiring the engineer to sound an alarm before reaching the? crossing, is to put the way traveler on his guard; and when, the engineer neglects the necessary signals, he deprives the* traveler of one of the means upon which he has a right tardy for protection against the danger of a collision.

The evidence tended to show that the plaintiff was within* a few feet of the third track, and heard nothing to give him-, warning of an approaching engine. ' He left his position,, and stepped, forward to cross it. He could not see the¡. approaching engine, until he had got to the very point of . danger, and then on account of the rapid motion of the* engine, he was unable either to cross over, or to recede and avoid it.

The court below maintains the proposition that the plaintiff, although he had waited on the second track until the train had passed, and had heard no signal of another, yet that he should have stopped again and looked down the third. track before attempting to cross it. And this is put upon, the ground that it might be expected that an engine at full speed would be rushing along at that very time without-giving any warning of its approach.

I cannot subscribe to such a proposition. It was I think,, a question for the jury to decide, whether, under the particular circumstances of the case, the plaintiff was wanting-in ordinary prudence in attempting to cross the third track •when he did, without taking other precautions to discover ¿hat it was clear.

Doubtless, if the engineer gives the usual signals, and the -way traveler does not hear them, it would be his misfortune E he came in collision with the engine. So E the way traveler cannot see the train with his eyes in time to avoid it, it is his folly E he ventures to proceed, and comes in collision with it. But when he cannot have the use of his eyes *.to discover the danger, until he reaches the track upon which the train is approaching, and upon stopping a few feet short to listen, he hears no signal, can it be said as an abstract proposition, that the plaintiff is guilty of negligence, because he trusts his ears, and comes to the conclusion that it is safe to take the few steps necessary to pass over it? If he has listened while standing within a convenient distance of the track, and has heard no signal of an approaching train, E he has but a few steps to go to cross it, and if acting on this belief, that it was safe (as nine men out of ten would do in a similar situation), he started on, and was met by an engine running along almost noiselessly and at great speed, can it be said with propriety, that he should have expected such a thing to occur as did occur in this case ?

It is not necessary to decide that the plaintiff was not ¡guilty of negligence. All I claim is, that considering the peculiar position this plaintiff was placed in, as may be gathered bom lbs own statement; his proximity to the track; the few moments it would take to clear it; his obstructed 'vision, and the noise and confusion at the time; that no signals were sounded from the approaching engine to put .him on his guard, and the unusual speed with which the ■engine approached him; I say, considering all these cireum-stances, it should have been left to the jury as a question of fact to determine whether or not the plaintiff was guilty of negligence in attempting to cross the tracks, without taking .further and additional precautions against the danger of a ■collision.

If, howrever, the evidence should disclose that the plaintiff -was heedless or careless, and neglected to avail himself of the usual precautions, which men of common prudence would use in like circumstances, he cannot recover, under the well settled rule that his own neglect contributed to procure the injury.

The degree of care which a way traveler should observe, when about to cross a railroad track, has been discussed in several adjudicated cases. In Pennsylvania R. R. agt. Ogier (35 Penn. R. 160), it was held that negligence was a relative term when applied to a traveler in such a case, and consisted in the absence of that ordinary care which a party ought to observe under the peculiar circumstances in which he is placed; and that a different degree of care is required, when there is reason to apprehend danger, from that which is necessary when none is to be expected.

It was further held that a defendant cannot impute a want of vigilance to one injured by his act or negligence, if that very want of vigilance was the consequence of an omission of duty on the part of the defendant. In Johnson agt. Hudson R. R. Co. (20 N. Y. 66), the same views were expressed, and it was held that the deceased was bound to exercise ordinary prudence and no more; and it was for the jury to determine whether it appeared from the evidence that there had been, on the part of the deceased, a want of that care and foresight that men of ordinary prudence are accustomed to employ, placed in like circumstances (p. 68). And in Warren agt. Fitchburg R. R. Co. (8 Allen 227), it was held that crossing a railroad track without looking to seo if a train is coming, is not conclusive proof of want of care, although with nothing to explain or qualify the act, it would be regarded as negligence. The plaintiff in that case followed the direction of the station agent to cross over. The path by which he went to the train was somewhat oblique, in that the engine which struck him came in a direction partially behind him. The court say: Whether in this condition of things, his anxiety seasonably to reach the train, which would stop but a moment, the plaintiff at a station with which he was not familiar, would have been likely to be thrown off his guard by the direction to cross over, given without any condition or qualification; whether he might naturally, and without subjecting himself to the imputation of want of care, have considered himself under the charge of the defendants’ .agent, with an assurance that it was safe and proper to go directly to the cars, were questions for the jury and not for the court.” The case shows that when he reached the outside of the platform he could see an approaching train at a distance of thirty or forty rods, but that he stepped off without looking that way, and did not hear the whistle until it was too late to escape collision. Unless I am not entirely mistaken, there were more circumstances of excuse for the plaintiff in the case at bar, than in the case of Warren.

The duty of a railroad company to exercise more caution and a higher degree of care when running their cars through a village or city, then in the country, as was held in Fargo agt. The Buffalo and State Line R. R. Co. (22 N. Y. 207), concedes that the company would be liable in not exercising it, when by so doing ordinary prudence on the part of the way traveler, would save him from a collision.

The good sense of the rule may be thus expressed: Ordinary care requires the way traveler to look for a train when approaching a railroad track. If he cannot, see by reason of obstructions, it requires him to stop just short of the track and listen. If he does more than this, it is extraordinary caution, and what is not required on the part of the plaintiff to entitle him to recover against a railroad company, which has culpably. omitted to sound an alarm before reaching the crossing, if the jury believe that the accident would not have occurred provided the usual signals had been given.

I distinguish the case at bar from those in this state, where it has been held that the plaintiff could not recover in consequence of his own want of caution in attempting to cross a railroad track. In Dascomb agt. The State L. and B. R. R. Co. (27 Barb. 221), the plaintiff drove along upon tho track without taking the slightest precaution to ascertain whether or not a locomotive was approaching.

In Mackey agt. N. Y. C. R. R. Co. (Id. 528), the deceased after being notified of the approaching train, whipped up Ms horses and undertook to cross the track, when he was struck by the' locomotive and killed. In Sheffield agt. Rochester and Syracuse R. R. Co. (21 Barb. 389), the plaintiff was in plain sight of the track with nothing to obstruct Ms view. So in Steves agt. The Oswego and Syracuse R. R. Co. (18 N. Y. 422). In Wilds agt. The Hudson Biver R. R. Co. (24 N. Y. 435), it is assumed, in the opirnon of the court, that the company complied with the requisitions of the statute by ringing, so that it was heard at a distance sufficient and in time sufficient to give abundant notice to all persons to keep off the track. A flagman was also at the station giving signals of the approaching train. This was, perhaps, sufficient to dispose of the case without reference to the misconduct or negligence of the deceased; but the opinion proceeds to state that the deceased himself, after notice of the danger, wMpped up Ms horses and attempted to cross the track. Under tMs state of facts, the court very properly decided that the defendants were not liable. The action was tried again and judgment of non-suit ordered against the plaintiff. Upon appeal to tMs court, the judgment of non-suit was affirmed (29 N. Y. 315). The opinion was delivered by Denio, Oh. J., in wMch he indulges in some observations, wMch I think are liable to be misunderstood when applied to the case at bar. “ If ” (he says) “ the case is such as to require the person wishing to cross to come near the track to make Ms observations, tMs circumstance, so far from excusing him from the duty of looking at all, would only render tMs duty more' imperative, if he would avoid the imputation of negligence.” I agree that it is the duty of - a person who is about to cross a railroad track, to make an observation before crossing, but in our cities the vision is completely obstructed by intervening obstacles, when it is often very difficult to see up and down the railroad track beyond the space of one or two brdldings. However much we may speculate upon what should be considered prudence in such a case, our citizens walk over the track daily, depending upon their hearing more than they depend upon their eyesight, to determine upon the propriety of crossing over it. If locomotives were run as they should be, and as I think they generally are in our cities, with moderate speed, it would be rarely, if ever, that a foot passenger would be caught,by an engine while he was crossing over the track in such a case. But if an engine is running in such a case at full speed, without making any signals of danger, then doubtless there is no. safety except for the foot traveler to stop at every point to obtain an observation, J until it is obtained, and then to run for his life until he is on the opposite side. If he can see both ways but twenty rods and has but four rods to go to get over the track, it might be prudent perhaps, for him to wait until he could see i farther; for, if trains are allowed to run at full speed in our cities, an engine at twenty rods distant might overtake him before he had time to dear the last rail on the opposite side. Indeed it may be said with truth, that in our cities it is safer in many cases to listen for signals, than to attempt to see an approaching train, by looking up and down" the track.

It is not unusual for empty cars and freight cars to stand upon the tracks near the crossings in our cities, some have engines attached to them, and are waiting some signal to start, some have no engines attached. In the meantime passenger trains are running in and out, and a person who wishes to cross the track is necessarily in some doubt as to the exact condition of things. His observation of the tracks is necessarily very limited, and the view he obtains quite unsatisfactory. There is often a curve in the track at a short distance from the crossing, so that he cannot see an approaching train without going quite a distance out of his way. In this condition of things ought we to establish the rule, that a foot traveler is guilty of want of ordinary care and caution by attempting to cross without first obtaining an observation of the track at a distance sufficient to insure his safety against a locomotive advancing towards him at the rate of thirty or foriy miles an hour?

In my opinion, we ought to hold the railroad company responsible in such a case, if they run at too great a rate-of speed to allow a man to clear the track who has approached, it, without being warned of the danger by the usual signals. When a man on foot reaches a point near the crossing, and listens and hears no signal or warning, I think he is not. guilty of negligence for attempting to cross over the track in a case where he cannot see up and down the track by reason of obstructions. But I would not make the railroad company hable for a collision in such a case, when they run their locomotives with moderate speed and make the usual signals before reaching the crossing.

We are to look at the case at bar as it appeared from the plaintiff’s statement, and we must assume that the defendants run their engine at a dangerous rate of speed, without giving any signals of danger; that the plaintiff listened when standing upon the second track and heard no alarm;' that he could not see the engine until he was about to step, upon the third track, when it struck him before he could get out of the way. In this view of the facts, I think the court below erred in holding as a matter of law,- that the plaintiff was guilty of negligence.

The judgmentshould be reversed and a new trial granted,, costs to abide the event.

Porter, J;

The non-suit seems to have been granted on the theory, that a citizen who crosses a railway track, at its intersection with a public highway, is an absolute insurer of his own safety against the criminal negligence of a wrong doer. It was sustained at the general term on the equally untenable theory, that the plaintiff, who looked in each direction before crossing, and saw no engine approaching, was guilty of culpable negligence in not continuing to look both ways simultaneously. In either aspect, the decision was plainly erroneous.

The plaintiff owed no duty to the defendant beyond the-exercise of ordinary care. The proof is clear, not only that he was free from negligence, but that he exercised more cir•cumspection and care than most men would under similar circumstances.

He was on the east side of St. Joseph street, proceeding in a southerly direction, and on arriving at the crossing, he observed the approach of a train of cars from the west, on ■the fifth or southern track. He stopped at a safe distance -and waited until the entire train had passed. He stood at the point where the second track crossed the sidewalk. ’This, and the first or northern track, through some unexplained neglect of the company, were used as a place of deposit for empty freight cars, eight feet in height, extending up to within three feet of the sidewalk, and thus obstrutcing in a considerable degree the eastern view of the tracks used by the trains. Ho other cars were in view, and there -was no signal from any quarter of approaching danger. 'The flagman, whose duty it was to be at his post and display his flag when an engine was drawing near, or when, from any cause, the crossing was unsafe, did not appear to . give the customary warning. It turned out, however, that .at the moment the plaintiff resumed his way, an engine, ■ unincumbered with cars was running rapidly backward from the east on the track next to that on which he had been standing. Its approach was so sudden and noiseless, that although four of the witnesses stood on the south side of the crossing, looking toward the north, and with nothing to "•obstruct their view, neither of them saw it until an instant " before the accident.

The plaintiff knew nothing of this, and his first step brought him within some four feet of the point where he was struck by the projecting fender of the engine, which, though veiled from view, must then have been within forty . feet of him. At the first step, he looked east, at the second west, and he was prostrated at the third. The whole affair ■ was so instantaneous that he did not get to the track, but was knocked down before he reached it. After he started, less than two seconds intervened before his leg was crushed. .All the witnesses swear that the engine was moving at &. rapid rate of speed. ÁJ1 agree that the bell was not rung until after the accident.

Upon this state of facts, it is obvious that the gross negligence of the defendant’s agents was the sole cause of the injury. The omission of the customary signals was an assurance by the company to the plaintiff, that no engine was approaching within a quarter of a mile, on either side of the crossing. On this he was entitled to rely, and to the defendant he owed no duty of further inquiry. He was not bound to be on the lookout for danger, when assured by the company that the crossing was safe. The views expressed in the case of Ernst agt. The Hudson River Railroad Company, decided at the present term, are equally controlling in this case.

The judgment should be reversed, and a new trial ordered.

All- the judges concurred, except Davies, Oh. J., who expressed no opinion.

Judgment accordingly.  