
    (60 App. Div. 265.)
    McSORLEY v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, First Department.
    April 29, 1901.)
    1. Railroads—Injury at Crossing—Negligence—Evidence.
    Where a statute required a railroad company to cause a bell to be rung or a whistle to be blown at least 300 yards before crossing a grade crossing, and in an action for killing plaintiff’s intestate at such a crossing it appeared that the train was behind time and ran over the crossing without signals, that no flagman or gate was provided, and that the view of the crossing was obstructed by a freight house and a growth of trees which extended to within -25 feet of the middle of the roadbed, such facts were sufficient to justify an inference that defendant was negligent in failing to properly provide means to apprise travelers of the approaching train.
    2. Same—Contributory Negligence—Evidence.
    Where plaintiff’s intestate was killed by a train at a grade crossing, and there were no eyewitnesses of the accident, the deceased’s freedom from contributory negligence may be established by proof of facts and circumstances from which it may be fairly inferred that he was not at fault.
    8. Same—Evidence.
    Where deceased was killed by a train at a grade crossing, evidence-. tending to prove the general character of the highway, and the safeguards, if any, provided by defendant to avert accidents, was competent on the question of the degree of care exercised by defendant.
    4 Same.
    In an action for killing plaintiff’s intestate at a railroad grade crossing, plaintiff was not only entitled to show the difficulty of perceiving the danger at such crossing, as bearing on the question of contributory negligence, but was entitled to introduce evidence of all the circumstances bearing on the manner in which the accident happened, and everything relating to the highway as a thoroughfare, the extent of travel, and' whether many or few people were obliged to cross at that place, from which an inference might be drawn as to whether plaintiff’s intestate-would not reasonably anticipate that a train would approach without warning and at a high rate of speed.
    Appeal from trial term, ¡New York county.
    Action by Charles McSorley, as administrator of James McSorley,. deceased, against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant entered on dismissal of plaintiff’s complaint at the close of his case, he appeals..
    Reversed.
    The action was brought to recover for injuries which resulted in the deathi of plaintiff’s intestate, James McSorley, who was struck by defendant’s-south-bound passenger train on the afternoon of May 20, 1898, while drivinga delivery wagon westerly along the highway and across the railroad tracks-at Teaneck, N. J. At the trial the plaintiff, who was the father of James-McSorley, testified that the latter for seven years prior to his death had been employed by the firm of Lord & Taylor, first as a wagon boy, and then as-a driver, and at the time of the accident was following a regular route through Teaneck. This was corroborated by the manager of Lord & Taylor, who testified that: The deceased “had been on this route where he was killed since-1895,—about three years. He went over that route every day except Sunday”; and, further, that he was- of good health and habits,—“a very reliable-young man, attentive and alert in his business.” From the testimony of a co-employé who had frequently been with the plaintiff’s intestate in the delivery wagon, it appears that the route led west from Englewood, through Teaneck, to Hackensack, over “the main road between those two places,” both of which were large towns. As to the configuration of the ground and' the conditions at the place of the accident, the witness testified that going westerly along the highway it was down grade, approaching the track, for a long distance, so that it was necessary to use a brake, but at the track and to the west of it the ground was level; that the tracks ran north and south, and the road east and west, and on the north side of the road, approaching the tracks from the east, there was a growth of trees, and also a growth of trees northward along the railroad; that any person not acquainted there would have to get pretty near the tracks to see them, or to see a train approaching: that the day of the accident he “went for the horse,” but the wagon was air smashed up. Neither this witness nor others were allowed to testify how much travel there was upon this highway, and, though he testified that it was a regular dirt road, others were not allowed to state whether or not it was macadamized. Testimony was also excluded as to whether there were street lamps, whether there was a flagman, what was the condition of the wagon after the accident, and where the plaintiff’s intestate was lying, and' exceptions were duly taken by the plaintiff. Another employé of Lord & Taylor, who had traveled several times a week over the road, and who lived: at Hackensack, N. J., testified that at the time of the accident the growth of' trees on the north side of the highway extended to within 25 feet of the easterly rail of the middle track, there being, in all, three tracks at the crossing,— the westerly or south-bound track, the middle or north-bound track, and the-easterly, which was a switch track; that “during the whole of a quarter of a mile, going down towards the crossing, you could not see the track north of the crossing; that about 150 feet north of the crossing there was a freight house very close to the track, and the station was about a quarter of a mile-north of the highway; that at only one point, about 300 feet from the crossing, could the station be seen from the highway; that there was no gate at the crossing; that just above the depot to the north the track made a turn,, but it was possibly straight for a quarter of a mile.” An inhabitant of Tea-neck also testified that the first tree north of the highway and east of the-track was 20 or 30 feet away from the easterly up-rail. And another witness who lived in Teaneck testified that the trees referred to extended back 500-feet from the highway; that the latter had, to his knowledge, been open for travel for 30 years, and “from this point to Hackensack this is the principal1 road,—the only way.” Testimony was given by passengers on the train to-the effect that no bell was rung nor any whistle blown until at the moment of the accident. Some testify that they did noc hear any such, but others assert that they are positive that there was none. One passenger testified that the train, when he boarded it at Newburg, 40 miles from Teaneck, was 15 minutes late, which he ascertained by comparing the time-table with his watch. Fie stated that he had considerable experience in traveling, but was not allowed to say whether or not the train at the time of the accident was going faster than the ordinary rate. The plaintiff’s intestate, he said, was picked up from “between the two tracks” and put in the baggage car. It was further testified that the day was bright and clear, and the accident happened early in the afternoon. Another passenger stated, by deposition, that from one side of the train he saw the injured man and the wagon, and from the other “saw a farmer leading a horse down, and he seemed to be in good condition.” There was put in evidence the New Jersey statute providing for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default, and also the statute providing that a railroad, company shall cause a bell to be rung or a steam whistle to be blown at least 300 yards from the place where such railroad crosses a turnpike road or highway upon the same level, and that such bell shall be kept ringing or such whistle shall continue to be blown until the engine has crossed the highway. At the close of the plaintiff’s case, motion was made to 'dismiss the complaint, which was granted; the court holding that “there is not enough to send the case to the jury.” From the judgment thereupon entered the plaintiff appeals.
    Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHUN, and O’BRIEN, J.J.
    Alfred B. Cruikshank, for appellant.
    Herbert E. Kinney, for respondent.
   O’BRIEN, J.

From the evidence which we have before us, and which was admitted on the trial, it is evident that the questions of the defendant’s negligence and of the contributory negligence of the plaintiff’s intestate were very close, and0 it is by no means certain that they should be determined against the plaintiff. Thus it would appear that, in the face of the New Jersey statute, the defendant’s train, which had been behind time at Newburg, was speeding southward and over this grade crossing without any signal of its approach by whistle or bell, and without providing a flagman or gate; that, though the road was straight for the distance of about a quarter of a mile north of the crossing, the view in this direction was obstructed by a freight house close beside the tracks and a growth of trees along the tracks and along the north side of the turnpike, the trees extending to within 25 feet of the middle of the roadbed; and that the highway Was precipitous, approaching the railroad, though level at the crossing. Upon these facts there was sufficient to justify the inference that the defendant was negligent in not sounding a warning or having a flagman or gate at the crossing to apprise travelers of the approaching train. And we cannot conclude, as matter of law, that there was no proof that the deceased was free from negligence which contributed to the accident. Upon this latter question it might yery well be that the plaintiff’s intestate, who was described as a man “attentive and alert” in character, arrived at the tracks without any intimation of danger, and, suddenly discovering .the train close upon him, was unable, with reasonable care, to avoid the •collision. Suddenly confronted by a rapidly approaching train, he was compelled, in the management of his horse, to act hurriedly, ¡and under such circumstances a mistake of judgment is never conclusive proof of negligence. It is true that "the testimony is scant, there, being no eyewitness; but, from the position of the wagon and the horse after the accident, it is fair to infer that he had, when struck by the train, almost reached a place of safety. This much we are able to conclude from the testimony before us, and, though some evidence bearing upon the questions of negligence was thus admitted, what the appellant justly complains of is that all the evidence offered upon these matters was not allowed. Thus, while inquiries directed to some witnesses as to the character of the highway, the precautions taken to warn travelers, and the position of the wagon and of the injured man at the time of the accident were admitted, similar evidence which was intended to amplify and more fully explain these same incidents was excluded. The rule to be applied is thus referred to in Pruey v. Railroad Co., 41 App. Div. 158, 58 N. Y. Supp. 797:

“In a case where death ensues as a result of a collision of this kind, and where there is no eyewitness of the occurrence, there is a relaxation of the rule requiring strict proof that the decedent was vigilant and observing as he advanced towards the track. The regulation exists in its integrity, but the proofs presented may be inferential, may be dependent upon circumstances, and still be adequate to satisfy the court of the absence of contributory negligence. As was said in Noble v. Railroad Co., 20 App. Div. 42, 46 N. Y. Supp. 645, ‘In actions to recover damages for negligence resulting in death, where there are no eyewitnesses of the accident, the freedom of the deceased from contributory negligence may be established by proof of facts and circumstances from which it may fairly be inferred that the deceased was not at fault.’ ”

Thus, in Wieland v. President, etc., 30 App. Div. 85, 51 N. Y. Supp. 776, where an accident similar to this occurred, and where, as here, the horse escaped injury, a recovery was allowed..

Whether the circumstances and conditions shown by the evidence admitted to exist were such as would warrant a recovery here, however, it is unnécessary for us to determine, for the reason that we think error was committed in the exclusion of considerable evidence tending to show the exact situation at the place and the time of the accident. Were such evidence admitted, the plaintiff might have been able to make out a prima facie case. Thus, upon the question of the defendant’s negligence it was proper, as bearing upon the degree of care which the defendant should exercise, to show the general character of the highway, and the safeguards, if any, provided to avert accidents; and upon the question of contributory negligence it was competent to show, in addition to the difficulty of perceiving danger, all the circumstances which would bear upon the manner in which the accident happened, and everything relating to the highway as a thoroughfare, the extent of travel upon it, and whether at that point many persons were obliged at all times of the day to cross, from all of which the inference might be drawn that the intestate would not reasonably anticipate that a train would approach without warning and at a high rate of speed. In the case of Judson v. Railroad Co., 158 N. Y. 597, 53 N. E. 514, wherein it was held (headnote) that “a person approaching a railroad crossing is not bound to exercise the greatest diligence, but only such as a prudent man approaching such a place would ordinarily exercise under the circumstances,” the rule was pointed out that what a person desiring to cross a railroad track must do in a given case to relieve himself from the charge of negligence is for the jury to decide in view of the circumstances developed.

Aside from these questions of negligence, our attention is called '■by the appellant to the exclusion of evidence bearing upon the allegation of the complaint that the defendant inhumanly treated the injured man after the accident by conveying him in its baggage room, without medical attendance, from Teaneck to Weehawken, where he died. This objection is met on the part of the defendant by showing that, although the complaint contained the allegation referred to, it was also alleged therein that the death of the plaintiff’s intestate was caused by the collision itself. Further, the defendant -avers that for such personal injuries, if any, recovery was impossible after death. In regard to these questions we think that no comment is necessary, in view of the conclusion at which we have arrived that error was committed in excluding evidence offered upon the defendant's negligence, and the freedom of the deceased from contributory negligence.

We think, therefore, that the judgment should be reversed, for the reasons stated, and a new trial ordered, with costs to the appellant ~to abide the event. All concur.  