
    Lewis v. New York, L. E. & W. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Railroad Companies—Accidents at Crossings—Contributory Negligence.
    In an action for personal injuries caused by being struck by defendant’s train at a crossing, plaintiff testified that, before attempting to cross, he stopped at the usual place to look for approaching trains; that be looked to the left, the direction from which the train that struck him was approaching, and neither saw nor heard a train; that he then looked to his right for a second or two, while starting his team, and then looked to his left, when the train was upon him. Held, that it was for the jury to say whether plaintiff was guilty of contributory negligence.
    2. Same—Public Crossings—Instructions.
    There was evidence showing that the crossing was a public highway by user, within the statute of New York requiring bells to be rung or whistles blown on approaching crossings “on all public highways. ” The court charged “that when a locomotive crosses a highway upon grade the whistle must be blown or bell rung eighty rods before it reaches the highway, ” etc. Defendant excepted, on the ground that the charge assumed that it was a public crossing, and the court then left to the jury to determine whether it was a public highway by user, saying: “If this is a highway, the law applies to it, and it does not apply to private crossings. ” Held, that the last charge cured any error committed, and was as favorable to defendant as the facts warranted.
    3. Same—Plead in o.
    The complaint alleged that the crossing was “extensively and notoriously used by the public at the time of said accident, and for many years prior, to the knowledge of defendant. ” Held, sufficient to raise the issue whether the crossing was a public highway, within the statute requiring signals.
    Appeal from circuit court, Orange county.
    Action by George Lewis against the New York, Lake Erie & Western Railroad Company, for damages for personal injuries sustained by being struck by a train on defendant’s track at a railroad crossing. Verdict and judgment for plaintiff. From said judgment, and from an order denying defendant’s-motion for a new trial, defendant appeals.
    Argued before Dyioias and Pratt, JJ.
    
      Lewis B. Carr, for appellant. /. M. Gardner, for respondent.
   Pratt, J.

Two questions arise in this case, neither of which are very easy to determine. The defendant claims that the evidence was insufficient to-warrant the submission to the jury of the question of defendant’s negligence or the freedom of the plaintiff from neglect. The latter question, we think, was a fair question for a jury. The plaintiff testifies that before attempting to cross the track he stopped at the usual place to look for approaching trains;, that he looked to his left, the direction from which the train that struck him was approaching, and neither saw nor heard a train; that he then looked at his right for a second or two, while starting his team, and then again looked to his left, when the train was upon him. It was a fair question for the jury to say whether he made a vigilant use of his senses to discover approaching danger; whether, in fact, in view of all the circumstances, he .acted like a prudent man. This question was submitted to the jury under an unexceptionable charge, and we can not say the verdict is against the weight of evidence. The whole question must be measured by the test whether he used all the precautions, in view of the peril, that a reasonably prudent man would have used to prevent injury. There was no occasion for him to look for approaching trains until about the time he was about to cross the track. At all events, his duty in this respect was a question for the jury, and the request seems to-have been made by defendant for a charge in this respect. He had been waiting some time for a train coming from his right to pass, and it was as much his duty to guard against an approaching train coming from his right as one-coming from his left. On the whole case, as made upon this question, we think the jury were right in finding that the plaintiff was free from negligence.

The defendant’s negligence turns upon the'guestion, first, whether the defendant owed the statutory duty in respect to crossing highways of ringing a bell or blowing a whistle; and upon the further question of fact, whether it was performed in this instance. The statute imposes this duty in approaching crossings “on all publicly traveled roads.” The defendant complains that this was never laid out or accepted as a public highway, and hence must be regarded as a private crossing; but the evidence was sufficient to establish the fact that this was a public highway by user sufficient to bring it within the statute requiring signals to be given. There is no doubt but this was such a crossing as called upon the defendant to exercise some reasonable care in approaching it, but the trial judge charged, in general terms, “that -when-a locomotive crosses a highway upon grade the whistle must be blown or bell rung eighty rods before it reaches the highway,” etc. This was true as an abstract proposition, but by implication it assumed that this was a public crossing, to which the defendant took exception. The judge then left it to the jury to determine whether that was a public highway by user, saying; “If this is a highway, the law applies to it, and it does not apply to private crossings.” This last charge not only cured the error, if any was committed, but was quite as favorable to the defendant as the facts warranted. Assuming it to be a private crossing, under all the evidence, it was a fair question for the jury to say whether reasonable care was used in approaching it. The-complaint was, however, sufficient to raise the issue whether this crossing was a public highway, within the statute requiring signals. The allegation is that the crossing, etc., “being extensively and notoriously used by the pub-1 lie at the time of said accident, and for many years prior, to the knowledge of the defendant.” This statement, while not artistic, if sufficiently proved, would warrant a finding that the crossing was within the statute. Upon the question whether the signals were given, the evidence was contradictory, but there was sufficient testimony of a failure to do so to sustain the verdict. The exception to the admission of evidence of custom on part of defendant- to signal the approach of trains to this crossing was not well taken. It tended to show how defendant had regarded this crossing, i. e., knew and recognized it to be dangerous. It also had a bearing upon the issue of plaintiff’s care and-conduct, as, if such had been the habit, a failure on this occasion might well allure plaintiff to attempt to cross. We fail to find any error sufficient to-warrant granting a new trial. Judgment affirmed, with costs.  