
    (112 App. Div. 341)
    PALMER et al. v. LARCHMONT HORSE RY. CO. et al.
    (Supreme Court, Appellate Division, Second Department.
    April 27, 1906.)
    Street Railroads — Driving on Tracks — Failure to Look and Listen— Question for Judy.
    While deceased was driving along the street on a dark night he discovered red lights hanging on telegraph poles, which encroached upon the highway, to within about nine feet of the street car tracks. In order to avoid the apparent danger, he turned in and drove along with two wheels over the first rail. A few seconds later he was struck by a car coming up from behind, and killed. Held, that he was not guilty of contributory negligence as a matter of law because he failed to look and listen before driving upon the tracks.
    GAY3MOR and Miller, JJ., dissenting.
    Appeal from Trial Term, Westchester County.
    Action by Bryant S. Palmer and another, as administrators of Floyd T. James, against the Darchmont Horse Railway Company and another. From a judgment for plaintiffs, and an order denying a motion for a new trial, defendants appeal.
    Judgment and order affirmed, with costs.
    Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MIDLER, and GAYNOR, JJ. "
    Isaac N. Mills, for appellants.
    Arthur C. Palmer, for respondents.
   WOODWARD, J.

Counsel have argued this case at great length in their briefs, but the case does not appear to be different in principle from negligence cases generally, and it is practically conceded upon this appeal that the motorman operating the car which produced the injuries complained of was negligent in the management of the same.

The only other question' upon the merits is whether the plaintiffs have offered evidence from which the jury were justified in finding that the plaintiffs’ intestate was free from contributory negligence. The two railroad companies were jointly interested in the operation of the cars over the line, and we are of opinion that there is no question of the joint liability, if there is, in fact, any liability at all; and upon this proposition the jury has found in favor of the plaintiffs. The defendants appeal.

Floyd T. James was killed in a collision between the car jointly operated by the defendants and a light wagon which he was driving on the highway in the town of Mamaroneck, between the villages of Mamaroneck and Darchmont, on the 28th day of November, 1900, at about 11:30 p. m., and his administrators bring this action to recover damages for his death, alleging negligence on the part of the defendants. On the night of tbe accident, James, in company with one Chatterton, started on a drive from White Plains, following the highway and the tracks of the trolley line of one of the defendants. When in Palmer avenue, in the town of Mamaroneck, the plaintiffs’ intestate, who had been driving along the side of the track, discovered red lights hanging on certain telegraph poles, which encroached upon the highway to such an extent that the driveway was only about 9 feet between the tracks of the defendants and the poles, back of which was a retaining wall. He 'was driving q,t the rate of about 8 miles an hour, and his attention was called to the lights by his companion just as they were within about 25 feet of the first pole containing such lights. The night was starlight but dark, and, being thus, warned of danger, James turned his horse in the direction of the tracks of the defendants, and, crossing over the first rail with two wheels of his light wagon, he was driving along 'in the same general direction, without slackening his speed, when his wagon was hit in the rear by the defendants’ car, and he was thrown out and- under the wheels .of the car, which appears to have run some 200 feet before coming to a stop, when the deceased was found under the car mangled and dead. The evidence shows that the deceased was not upon the track for a distance of more than 40 feet, involving only a few seconds of time at the rate his horse was traveling, and the defendants urge upon this appeal that he was guilty of contributory negligence, or, at least, that the plaintiffs have failed to show a lack of contributory negligence, because it is not shown that the deceased looked or listened before driving upon the tracks of the defendants; and a long line of cases in which the courts have held that a plaintiff cannot recover where he has entered upon the tracks without listening or looking, and has driven upon the same, are cited in behalf of this contention. It seems to us that none of these cases have any bearing upon the situation as it was revealed by the evidence, and as the jury were justified in finding. The defendants were occupying a public highway. They were charged with the duty of knowing the situation at the point where this accident occurred, and the fact that the deceased, driving briskly along a public highway, to avoid an apparent danger, turns his horse upon the defendants’ tracks, and proceeds along the line for the obvious purpose of passing the danger signals, is not inconsistent with the exercise of that reasonable degree of care which he was called upon to exercise. He was in a position of apparent danger. The entire time between the moment his attention was called to the red lights and the collision was but a few seconds, and the acts of a man in an emergency, even though not the most prudent which might have been adopted, do not constitute negligence. It seems to us that the jury might very properly draw the inference that the deceased was exercising due care in driving along this highway; this was the duty he owed, not to the defendants, but to himself. He had a right to be there; he had a right to traverse any part of that highway, subject to the paramount right of the defendants to operate their cars in a reasonably careful manner; and when the deceased saw these red lights, and drove away from the apparent danger, he was exercising some degree of care, and the fact that, in exercising this care, he ran info a new danger, and one which he had had no reasonable opportunity to observe, does not deprive his representatives of the right to recover for the negligence of the defendants. He was not driving heedlessly; he was exercising care. He was trying to avoid danger, and in the brief interval that elapsed between the first effort to avoid the danger indicated by the red lights, the extent of which in the darkness he could not readily determine, and the happening of the accident, was not sufficient to justify the conclusion that he was upon the tracks in a negligent manner. He had a right to get past the red lights, to get past the danger which they indicated; and while he could not recklessly disregard the fact that the defendants were operating cars over that line, he was not, as a matter of law, bound to look or listen before making an effort to get out of the danger which seemed both obvious and imminent. At least, we think the situation was one which was properly submitted to the jury, and that its verdict, in the absence of legal error, ought not to be disturbed.

We have examined the matters alleged to constitute error in the trial of this case, but we do not find that the rights of the defendant have been prejudiced, and we reach the conclusion that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

HIRSCHBERG, P. J., and RICH, J., concur.

GAYNOR, J.

(dissenting). The motion to dismiss should have been granted. The facts of this case are simple, once you get through the drudgery of picking them out of the mass of useless matter which counsel on both sides seemed bent on accumulating on the trial. The deceased was driving about midnight in a light one seat wagon along a suburban country road on which there was an electric street railway. Another man was seated with him. They saw two or three red lanterns ahead of them suspended in the road, indicating that some work was going on there, and that that part of the street was obstructed. The deceased turned his horse upon the railway track to go by the place where the lanterns were, and his wagon was forthwith run into by a car that came up behind him and he was killed. It all happened in a few seconds. The car was fully lighted by electricity. Neither the deceased nor his companion, as appears from the testimony of the latter, who was sworn by the plaintiff, looked back, or listened, or did anything to find out if a car was coming before turning into the track. They were talking about wagons. They were in no place of danger when they turned; they simply saw some warning lights ahead and turned. Their negligence was gross, and that it contributed to the accident is beyond doubt. The case is of a class familiar to us all. If the deceased had been driving along on the track before he was hit, which is by no means as strong a case for the defendant, it seems there- could be no recovery: Belford v. B. H. R. Co., 86 App. Div. 388, 83 N. Y. Supp. 836. He turned into the track where he knew cars ran at high speed, and was bound to look before doing so. Even one afoot would not be excused for omitting to do so. Reed v. Metropolitan R. Co., 180 N. Y. 315, 73 N. E. 41. Reasonable prudence is to look when you can.

The judgment should be reversed.

MILLER, J., concurs.  