
    Walter C. Spooner, as Guardian, etc., Resp’t, v. D., L. and West. R. R. Co., Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    1. Practice—When objection deemed waited.
    An objection, when not taken advantage of by either demurrer or answer, must be deemed to have been waived, and may be disregarded.
    2. Negligence—Railroad crossing—Evidence of reconstruction of, WHEN COMPETENT. "
    The action was for injuries caused by defendant’s negligence. One ground of negligence asserted was the defective construction of the crossing at which plaintiff was injured The complaint averred an ownership of the crossing by the defendant company, and alleged that plaintiff “ had her foot inextricably caught and fastened between the rail and the planks at the crossing belonging to such railroad,” and charged that the.defendant negligently permitted an arrangement of the planks to be and remain defective. The answer denied the defective arrangement, but did not deny the ownership of the plank crossing, and raised no issue over that ownership and the duty flowing from it. The plaintiff offered proof _ of a reconstruction of the crossing after the accident by the company which was excluded. Held, that while inadmissible upon the question cf negligence, as it tended to show that the company exercised the dominion of an owner over the crossing its rejection was justifiable only upon the ground that no such issue was raised by the pleadings.
    3. Same—What question for the jury.
    Whether the crossing was defectively built and maintained, was properly submitted to the consideration of the jury.
    4. Same—Instructions to jury—When negligence not imputed.
    The court charged that “if as soon as the engineer saw the plaintiff fall upon the track, or discovered that, for some reason, she could not, or might not, get out of the way in time, he made diligent use of all the means at his command in order to stop the train and avoid injuring the plaintiff, he did all that he was required to do. and was guilty of no negligence. Held, no error
    5. Same—When party not trespasser.
    It was contended by plaintiff 'that she stepped upon the track in the effort to save younger children from danger. Held, that in such an event plaintiff was not a trespasser.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment entered upon a verdict of a jury rendered in favor of plaintiff at a trial term.
    
      Hamilton Odell, for app’lt; A. W. Tenney, for resp’t.
    
      
       Affirming 1 N. Y. State Rep., 558.
    
   Finch, J.

This action was for negligence, and resulted in a verdict against the defendant of $20,000. The general term, which had authority to consider and question its amount, has affirmed it, and our duty is confined to the inquiry, whether any errors of law require its reversal.

(1.) At the close of plaintiff’s case the defendant moved to dismiss the complaint upon the ground that the action was not brought in the name of the real party in interest. The. motion was denied and there was an exception. No such objection had been taken by demurrer or answer. If it was apparent upon the face of the complaint it could have been reached by demurrer, for there would have been a defect of parties: Otherwise, it is new matter to be pleaded in the answer, and if not, no such issue is raised, and no such question can be tried. Smith v. Hall, 67 N. Y., 50. The objection was one which, if taken in proper season, could have been obviated by a very simple and purely formal amendment, and when not taken away by either demurrer or answer, must be deemed to have been waived, and may be disregarded. The difficulty was one rather of form than substance, and had its basis in the title of the action alone, which was: “Walter C. Spooner, as guardian ad litem of Ethel A. Spooner, an infant under the age of fourteen years.” The complaint, however, stated a cause of action in favor of the infant, averring a wrong done to her and damages suffered by her, and so indicating that she was the real plaintiff appearing by her guardian ad litem. The defendant was not misled. The answer correctly interpreted the meaning of the complaint in spite of the informality of its title, for the defense was vested upon a denial of the negligence alleged and an assertion of contributory negligence on the part of the infant. The formal defect in the title was, therefore, properly disregarded when raised at the close of the plaintiff’s case, and the trial court was justified in construing the complaint as setting out a cause of action in the name and behalf of the infant appearing by her guardian.

(2.) One ground of negligence asserted was the defective construction of the crossing at which the plaintiff was injured. It appeared, during the progress of the trial, that the railroad was constructed and operated before the highway was laid out, and that the latter crossed the railroad, and, therefore, it is claimed,' in the absence of any statutory provision of the state of New Jersey, within whose territory the accident occurred, it must be presumed that the duty of making and maintaining the crossing was upon the highway authorities, and not upon the railroad.

The complaint, however, fairly averred an ownership of the crossing by the railroad company. It alleged that the plaintiff “had her foot inextricably caught and fastened between the rail and the planks at the crossing belonging to such railroad,” and charged that the defendant negligently permitted an arrangement of the planks to be and remain defective. The answer denied that defective arrangement, but did not deny the ownership of the plank crossing, and raised no issue over that ownership and the duty flowing from it. And this construction of the pleadings becomes entirely just, when we observe that the plaintiff’s offered proof of a reconstruction of the crossing after the accident by the railroad company was excluded upon the defendant’s objection. While it was inadmissible upon the question of negligence, it would have shown that the railroad company exercised the dominion of an owner over the plank crossing, and its rejection was justifiable only upon the ground that no such issue was raised by the pleadings.

(3.) Whether the crossing was defectively built and maintained was properly submitted to the consideration of the jury. The plank at the point of the accident was new, and laid parallel with the rail on its inside and two and a half inches therefrom. It was laid with a straight edge, and the opening thus made for the flanges of passing wheels was the one in which the child’s foot was caught. The other planks at the same crossing had the edge of the plank parallel to the rail bevelled off or rounded, so that at the bottom it touched the rail, and the flanges had room to pass in, which no opening such as to catch or fasten an incautious foot was left. There is evidence that a similar mode of construction existed at many other crossings of the company, and was uniformly used upon some other railroads, although many retained the straight edges. The bevelled edge seems to be an obviously prudent mode of construction, known to the company and adopted by it at this.very crossing. It prevents any such possible trap fora child or a woman’s foot as is created by the straight edge, and while such an accident had never before occurred in the history of the company, its possibility was quite obvious to any ordinary observation. Many accidents have occurred from feet becoming caught in a frog, and such incidents would naturally have drawn attention to the similar danger where unrounded plank were laid at crossings. It was not error, therefore, to submit the question of defective construction to the jury.

(4) There was also a basis in the proof for alleging the negligence of the engineer, and the propriety of the child’s presence upon the track. How she came there, and what she was doing, depends wholly upon a disputed question of fact. The defendants’ witnesses, insisted that she was playing upon the track, at the Greenwood avenue crossing; and that after one warning whistle had driven her off,- she came back in front of the approaching engine, which was stopped with all possible promptness and effort. If that was true, she was a trespasser, and grossly negligent. But she tells a very different story. She came to tne track to see the train go by. It was then at Roseville, a station about half a mile away, in a straight line, and plain to her observation, as she approached the track. She found some children smaller than herself playing about the rails, and in danger from the train soon to arrive. She told them to get off the track, and they, not heeding her warning, she stepped upon it to make them get out of the way, and in the process her foot was caught between the plank and the rail. She waved her hands wildly as a signal to the engineer, who reversed his engine, and applied the brakes, when about three hundred and sixty feet from the crossing, and stopped his train just as the truck wheels of the engine had passed over the imprisoned foot. Between Roseville station and the Greenwood avenue station, there is no obstruction to the view in either direction, except possibly the bridge over the track, which was eight hundred and fifty-four feet from the scene of the accident. The plaintiff saw the train beyond the bridge at Roseville. The engineer, while at that station, either saw, or might have seen, the plaintiff upon the track. At all events, he did see her as he passed the bridge. He then saw a small child upon the track waving her hands and not stepping aside. He should have checked his train at once. There was ample time in which to do it, for he swears that he could, and did stop it, within three hundred and sixty feet. On this state of facts, the action of the engineer raised a question of negligence for the jury, and it was for them to say whether he ought not to have acted sooner in presence of what he saw before him. The plaintiff’s statement is corroborated by a witness who saw her upon the track, and who testified that she remained upon it, without leaving, from the first moment of her arrival. That contradicted the account of the engineer.

(5) And this brings us to the questions raised upon the charge. The court ruled distinctly that an engineer may prudently assume that persons on the track will step off as the train approaches, and is not negligent for acting on that assumption, except when they are “persons apparently not capable of taking care of themselves, such as very young children and persons lying helpless on the track.” The criticism is that Ethel was sui juris and capable of avoiding danger. But she was a child toward whom more watchful care was due, and in a perfectly helpless position, of which her action and conduct gave a warning which might or should have been heeded. That, also, is the answer to defendant’s tenth request, which was that the engineer had a right to act on the assumption that Ethel would step aside, and which was refused. That would have been true if all that the engineer could see was a young child on the track. Chrystal v. Troy and Bost. Co., 105 N. Y., 164; 6 N. Y. State Rep., 833.

But when he reached the bridge, more than that was obvious. Ethel did not move aside, and was waving her hands and trying to signal the engineer. While he could not see her foot fast in the crossing, he could see that for some reason she did not leave the track, and that something unusual had happened. He should have taken the alarm at once that the child was looking toward him, that she saw the engine and yet did not step aside, and was waving her hands wildly and in alarm. All this the first glance must have disclosed, and it called upon him to act on the instant. Whether he did so as soon as he could, or with reasonable promptness under the circumstances, was the question for the jury. The trial judge made his position entirely plain. He explicitly said: “if, as soon as the engineer saw the plaintiff fall upon the track, or discovered that for some reason she could not or might not get out of the way in time, he made diligent use of all the means at his command in order to stop the train and avoid injuring the plaintiff, he did all that he was required to do, and was guilty of no negligence.” The charge taken together accurately covered the situation, and fairly presented the question of fact to the jury.

Further requests to charge, which were refused, were founded upon the theory that Ethel was a trespasser upon ■! the track, but that was not true if her statement received . belief.

If she stepped upon the track in the humane effort to save younger children from danger she was not a trespasser. Eckert v. L. I. R. R., 43 N. Y., 502.

The answer made is that there was no approaching danger, and she was merely meddlesome, and the contrary theory is pure sentiment. But she saw the train at Rose ville, she knew it was coming; she knew that it moved swiftly; and the little children playing on the track were in danger; and whoever saw them there would naturally be alarmed for their safety and try to warn them off.

Some other objections to the charge have been considered, but their discussion does not seem to us necessary.

The judgment should be affirmed, with costs.

All concur.

Gray, J., concurs, except so far as the opinion implies a doubt as to the right of the guardian to sue in his own name for his ward, there being no objection to that if the action is brought for the ward’s benefit.  