
    WILLIAM A. LEONARD, Plaintiff and Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Respondent.
    RAILROAD COMPANIES, THEIR DUTIES AND RESPONSIBILITIES.
    Negligence; when the question of, should be submitted to the JUK7.
    
    Although the general rule is that a person approaching a railroad crossing should use both eyes and ears to discover and avoid an approaching train, there may be circumstances, or a state of facts, existing in some eases, where the most vigilant exercise of these organs will fail to wgrn and protect him, and in such cases the law does not charge a person with contributory negligence.
    
      M. g., the present case, where another long train of cars was passing in an opposite direction, and making a great noise, tending to show that if the bell of the train by which the injury was committed had been rung, the person injured could not have heard it.
    Other instances: As where the noise was caused by a wagon, or by a steam saw-mill, or by falling water, or by another train (Davis ». H. Y. 0. & H. R. R. R. Co., 47 K 7. 403; Richardson ». Same, 45 Id. 849; Ingersoll «. Same, 6 N. 7. Supreme Court [71 <& Cl] 416).
    In cases like the present one, the law requires the exercise of such a degree of care as prudent persons, knowing the danger to be encountered, and giving attention to their safety, would me to shield themselves from danger, and the question whether a person crossing a railroad track is negligent in not looking or listening for an approaching train, and whether he could have stopped in time to avoid the danger, are questions for submission to the jury (Weber ». H Y. 0. & II. R. R. R. Co., 3 N. 7. Weelckj Dig. 472; and the case of Sehatter ®. Gardiner, 47 N. 7. 402, cited therein).
    In this class of cases, when the conduct of the plaintiff is mixed with, and dependent upon, the acts of the defendant, and upon the surrounding circumstances, the questions of negligence fairly belong to the jury, in its general consideration of the whole facts of the case, and. should be submitted to them (Cases referred to in support of this point: Borst z>. L. S. & M. S. R. Co., 4 Hun, 349, affirmed by court of appeals, June, 1876 ; Thurber v. Harlem B. & F. ,R. R. Co., 60 1 E 331; Ingersoll v. H. Y. C. & H. R. R. R. Co., -6 W. 7 Supreme Court, 419). The effect of .these last decisions cited is not wholly in accordance with the mlings of this court in Sutherland v. H. Y. C.&K R. R. R. Co., 41N. 7. Superior Court (9 J. <&S.) 17.
    
      Held, that in this case, the questions of negligence were pure questions of fact, that should have been submitted to the jury.
    
      A railroad company operating trains upon a road owned by another company, is liable for negligence in running its trains thereon, and for the negligence of the flagmen stationed at the crossings, and for other servants or employees engaged in the signal service of that road. It is immaterial, so far as the public or the person injured is concerned, to whom the road or its signal service or other appurtenances that are in use at a crossing belong. The duty that there shall he no negligence in the premises devolves and rests upon the company running the trains by which a person is injured (Michigan Central R. R. Co. y. Kunonn, 39 III. 373; Clement y. Canfield, 3S Vt. 303; Wyman y. P. & K. R. Co., 46 Maine, 163; Webb y. Same, 57 Id. 117).
    Before Curtis, Ch. J., and Sanford, J.
    
      Decided May 8, 1877.
    This was an appeal from an order denying a motion made at the special term on a case for a new trial.
    This action was brought for the recovery of §50,000 damages against the defendant for injuries sustained by the plaintiff, in being run over by defendant’s cars, on June 17, 1874, at the corner of Fifty-seventh street and Fourth avenue, in the city of New York.
    The answer admits the incorporation of defendants, denies the remaining allegations of the complaint, and ■ alleges contributive negligence on the part of the plaintiff.
    At the time of the injury, parties were engaged in sinking the railroad tracks through Fourth avenue in that city, and for that purpose had removed the tracks from the position formerly occupied in the center of the Fourth avenue, and placed them upon the extreme west side of the avenue, the western track being in fact, upon the west sidewalk, and the other occupying a position in the avenue close to the curb.
    The excavation of the avenue progressed in sections, and at the time in question, one excavation commenced north of Fifty-seventh street, and extended southerly about half the block between Fifty-seventh and Fifty-sixth streets.
    This excavation was some fifty feet wide, and over it at Fifty-seventh street had been thrown a flat temporary bridge to allow the "public to cross the avenue during the improvement.
    The bridge was just long enough to span the excavation, and its west end lapped upon the bank and came within thirty-two inches of the east railroad track.
    The material taken from the excavation was piled up to a considerable height around it, and that taken from the excavation above Fifty-seventh street had been piled in the avenue below Fifty-seventh street to such an extent that commencing at the south end of the excavation half way between Fifty-seventh and Fifty-sixth streets, the pile filled all the space of the avenue between the curb on the east side and the east track of the railroad on the west line of the avenue, and rose to the height of some fifteen feet, and extended southerly two or three blocks, and 'the space between the east track and the excavation was entirely filled up to the bridge, so that a person standing upon the bridge even on the west end of it could not see a train coming up on the easterly track.
    A railroad flagman, whose station-house was at the northwest corner, was employed to guard that street intersection, and to signal trains passing on the tracks, and teams, and persons desiring to cross the avenue. At the time of the accident the plaintiff was the publisher of a journal called the Time Table, and was living east of the Fourth avenue at the corner of Lexington avenue and Fifty-eighth street, and was crossing through Fifty-seventh street intending to stop 'at the defendant’s Grand Central Depot, to ascertain if any change was contemplated by the defendant in running its trains. He was in the habit of crossing the Fourth avenue almost daily, and knew the position of the tracks.
    Before reaching the bridge the plaintiff saw a train some distance above coming down from the north on the west track, and when he reached the bridge he intended crossing the tracks in advance of such train, and had time in which to do so, as he thought, but he was stopped at the west end of the bridge by the flagman, who signalled him to stop.
    The flagman then occupied a position in the middle of Fifty-seventh street just west of the west track, and was signalling this incoming train to some teams which were approaching, and when he saw plaintiff upon the bridge he signalled him personally to stop, and he did so at once, at the west end of the bridge.
    After stopping the plaintiff, the flagman turned his face northward towards the train approaching from that direction, and waved his flag in the usual manner, and as the train approached stepped upon the track in front of it and remained there a few moments, and as the train neared him stepped off the track in an oblique northeasterly direction, which brought him between the easterly and westerly tracks where he remained waving his flag till that train had' passed, -when he ceased all signals to the plaintiff, lowered his flag, and started off, trailing his flag on the ground.
    The plaintiff was watching both the train (from the north) and the flagman, and when he saw the first pass, and the latter cease his signals and trail his flag, he stepped from the bridge towards the track looking straightforward, and was instantly struck by the defendant’s train, that was going north from the depot on the easterly track, and thrown - thirty feet into the rocks, in the excavation north of Fifty-seventh street, receiving wounds and fractures permanently impairing his sight, hearing, and health. This train, by reason of the embankments and obstructions could not be, and was not previously seen by the plaintiff.
    The flagman did not signal the train from the south, and apparently did not discover its approach, any more than the plaintiff, although from the flagman’s position he could have seen it if he had turned his face in that direction.
    There is no proof'that the engineer of the southern train either rung his bell or blew his whistle, although it is possible had he done both, the sound would have been droWned in.the noise of the northern train, which was very long and made a great deal of noise.
    On these facts, the court nonsuited the plaintiff, and denied plaintiff’s motion to allow the case to go to the jury, to which decision and refusal the plaintiff duly excepted.
    The plaintiff moved for a new trial at special term upon a case and exceptions, and from the order denying such motion appeals to the general term.
    
      De Witt C. Brown (Edward Gebhard, attorney), of counsel, for appellant.
    
      Frank Loomis, for respondent.
   By the Court.—Curtis, Ch. J.

Though the court of appeals have held that every person approaching a railroad crossing should use both eyes and ears to discover any approaching train, there may be circumstances where the most vigilant use of these organs will fail to warn and protect.

The evidence in the present case shows that the plaintiff could not, in consequence of embankments and obstructions, see up or down the track, until he stepped on to it, between two and three feet from the west end of the bridge. There was no opportunity for him to look until he emerged from between the obstructions on to the track, and as he was in the act of so stepping forward, looking before him, he was struck and thrown into the excavation. hFo exercise of prudence would have enabled him to have looked up and down the track. In looking forward, as he stepped forward, he exercised such care as a prudent man ordinarily would exercise under these circumstances. To have looked into the embankments to the right and to the left as he stepped from the passage-way between them on to the track, would have been useless and imprudent.

The testimony also shows that the train of cars that was coming in from the north at that time, was a very long one, and made a very loud noise, and though there is no evidence that a bell was rung on the defendant’s train, the proof strongly tends to show, that even if it had been rung, the plaintiff could not have heard it. The law in a case like this does not charge a person with contributory negligence, where the surrounding and external circumstances are such that the senses of sight and hearing cannot be exercised. There are many instances in which these circumstances, as for example, the noise caused by a wagon, or by a steam saw-mill, or by falling waters, or by another train, have been recognized by the courts as a sufficient excuse for not hearing an approaching train (Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y. 403 ; Richardson v. Same, 45 Id. 849 ; Ingersoll v. Same, 6 N. Y. Supreme Court [T. & C] 416).

In the recent case in the court of appeals of Weber v. N. R. C. & H. R. R. R. Co. (N. Y. Weekly Dig. 472), it is held that the law requires, in cases like the present, the exercise of such a degree of care as prudent persons knowing the danger to be encountered and giving attention to their safety would use to shield themselves from danger therefrom, and that the questions whether a person crossing a track is negligent in not looking or listening while he is on the crossing, and whether he could have stopped in time to avoid the danger, are questions for the jury. The case of Schattler v. Gardiner, 47 N. Y. 402, is cited in the opinion in support of this ruling. In this latter case, where there were also obstructions to seeing and hearing, Grover, J., says: “ These questions upon the evidence should have been submitted to the jury.” The doctrine, that these questions of negligence in this class of cases, where the conduct of the plaintiff is mixed with and dependent upon the acts of the defendant and the surrounding circumstances, in most cases fairly belong to the jury in its general consideration of the whole facts of the case, is sustained in Borst v. L. S. & M. S. R. Co., 4 Hun, 349, affirmed by court of appeals, June, 1878. The same was also held in Thurber v. Harlem B. & F. R. R. Co., 60 N. Y 331. In a case similar to the present, it was held that the evidence of obstructions to the sight and hearing of the approaching traveler at the crossing, made his alleged negligence a question for the jury and their decision upon it final (Ingersoll v. N. Y. C. & H. R. R. R. Co., 6 N. Y. Supreme Ct. 419).

The effect of these decisions is not wholly in accordance with the rulings in Sutherland v. N. Y. C. & H. R. R. Co., 40 N. Y. Superior Ct. (9 J. & S. 17), which the defendant cites to sustain the dismissal of the complaint in the case under consideration.

In addition to these obstructions to sight and hearing, as bearing upon the question of the plaintiffs negligence, there were other facts shown on the trial of the case, which were also proper to go to the jury in its general consideration of the whole facts.

The evidence,shows, that the defendant was running its train at the intersection of the Fourth avenue and Fifty-seventh street, two thoroughfares in the heart of a great city, at a rate of speed that threw the plaintiff thirty feet when he was struck by it; and the witness Bessiga, who resided in the immediate vicinity, testified “ There were a great many accidents occurred there every day, and I don’t know whether I saw this particular one.” It also appears .that the plaintiff crossed there almost daily, and must have been conversant with the tracks and the service signals of the road, and that he was watchful and obeyed the danger signal of the flagman, when signalled to stop, and proceeded on when the signal was lowered, after the train from the north passed. All these facts tend to enlighten the minds of the jury in passing upon the questions of negligence, which in this case are pure questions of fact.

It is true, the defendant insists that it is not shown, that it was their flagman, or their road, but it admits that the train was operated by it, which inflicted the injuries upon the plaintiff.

There is no good reason why a railroad company,, operating trains upon a road owned by another company, should not be liable for negligence in running its trains. The exigencies of the protection of the public require that it should be amenable to the same laws and regulations that bind the owner, and the-courts have so held (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522).

If the defendant operated this train on a road belonging to another company, and subject to the protection and signalling of this flagman, both as respects itself and the public at this crossing, it should be responsible for his negligence, for the same reason that it is protected by his care from liability, when persons cross the track, negligently disregarding his signals.

When various companies run trains over the same road in a large city intersected by the crossings of streets, the protection of citizens in the use of the streets should not depend upon inquiries to be made of the signalling flagmen of the road, as to which company-employs them, or whether they are duly authorized to signal danger or safety as this or that train passes. It must be assumed in such exigencies, that when a company chooses to run trains over a road guarded by flagmen, that it elects to be protected by these flagmen properly discharging their duties, and to be made liable in case they neglect them. No conflicting view would be consistent with safety, either to themselves or the public. The law does not give immunity from liability to a company operating its trains negligently, because it appears that it operates them upon a road and with a signal service that belongs to another company. As far as the person inj ured in passing over the crossing by such company’s train is concerned, it is imm aterial to whom the road or its signal service or its other appurtenances belong that are in use at that crossing. The duty primarily devolves upon the company running the train, that there shall be no negligence in respects to these matters as far as persons crossing are affected (Michigan Central v. Kanouse, 39 Ill. 272; Clemont v. Canfield, 28 Verm. 302 ; Wyman v. P. & K. R., 46 Maine, 162; Webb v. Same, 56 Maine, 117). It is apparent that without having a flagman at this intersection in question, the defendant was guilty of negligence in running a train at the rate of spefed this was run, which struck the plaintiff, and. even with a flagman it is questionable if the defendant was justified in running it at so high a rate of speed in a locality, when this class of accidents was of such frequent occurrence.

In Borst v. Lake S. & M. S. R. Co. (4 Hun, 349), it is held, that when a person waiting for an opportunity to -cross the track is signalled by a flagman stationed at the crossing, he has a right to rely on the flagman, and to suppose that he has performed his duty.

The evidence on the part of the plaintiff was sufficient to warrant the submission of the case to the jury, and the order appealed from dismissing the complaint should be reversed, and a new trial granted with costs to abide the event.

Sanford, J., concurred.  