
    <80 Hun, 404.)
    PHILLIPS v. NEW YORK & N. E. R. CO.
    (Supreme Court, General Term, Second Department.
    July 27, 1894.)
    1. Railroad Companies—Accident at Crossing—Contributory Negligence.
    In an action for personal injuries sustained while attempting to pass between two cars of a train standing across a highway, plaintiff’s evidence showed that the train had stood there for half an hour, and that a brakeman, when asked how long the train would remain, told plaintiff to climb “right across the train,” and that crossing in front or rear of the train would have been difficult. Defendant denied the invitation to cross, and insisted that the train remained in its position only two minutes. Held, that a non-suit was properly denied.
    2. Same—Negligence—Obstructing Highway.
    It was error to charge that the length of time the highway was obstructed was immaterial, and that if the brakeman, or one operating the train, told plaintiff that he might safely cross, defendant was liable.
    Appeal from circuit court, Dutchess county.
    Action by Joseph Y. Phillips against the Yew York & Yew England Railroad Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for §2,000, and from an order denying a motion for a new trial, defendant appeals. Reversed.
    Argued before BROWY, P. J., and DYKMAY and GULLEY, JJ.
    Milton A. Fowler, for appellant.
    Wood & Morschauser, for respondent.
   GULLEY, J.

This is an appeal from a judgment for the plaintiff entered upon the verdict of the- jury at circuit. The action is to recover damages for personal injury. According to the plaintiff’s story, a freight train of the defendant stood across a highway near Hopewell, in Dutchess county, for from a half to three-quarters of an hour, completely preventing passage along the highway. The plaintiff desired to cross. After remaining this length of time for the train to move clear of the highway crossing, he applied to a brakeman to learn how long the train was to remain. He was told to climb “right across the train.” Upon this, he attempted to cross between the cars. While he was on the platform or bumpers of the car, in the act of crossing, the engine started, and the plaintiff’s foot was injured. There was evidence tending to show that crossing either in front of or in rear of the train would have been difficult. The facts as to the invitation to cross, and the length of time during which the train had blocked the highway, were denied by the defendant, it insisting that the train had remained in its position for two minutes only. On these facts we think that the motion for a nonsuit was properly denied. That under ordinary circumstances the act of the plaintiff would have been negligent is unquestionable. Even if the highway was improperly obstructed, common prudence would have required him to wait a reasonable time for the train to pass on. But, according to his testimony, he had already waited a long period. It cannot be said, as a matter of law, that he should have remained indefinitely, and have abandoned his journey along the highway; nor that he was bound to turn back, and seek some other highway crossing, possibly miles away. If he had crossed in front of the engine, the criticism might as well have been made that such conduct was reckless, as it is now made in reference to the place where he had attempted to cross. Either crossing was safe (except for the probable requirement of agility in climbing between the cars) while the engine did not move. If the engine moved, each place was dangerous. In this the case at bar differs wholly from that of Solomon v. Railroad Co., 103 N. Y. 437, 9 N. E. 430. The plaintiff applied to one of the train hands for information as to the movement of the train, and received the answer already stated. On these facts, it was for the jury, if it believed the plaintiff’s evidence, to find whether the plaintiff was guilty of negligence in attempting to cross between the cars, and whether the defendant was guilty of negligence in starting the train without first looking to see if any traveler on the highway, whom they had put to extraordinary and unusual means of crossing the tracks by reason of the long obstruction of the highway, would be in danger. The learned judge at circuit charged, in effect, that the length of time during which the highway had been obstructed was immaterial; that, if the brakeman, or one operating the train, told the plaintiff that he might safely cross, the defendant was liable. To this the defendant excepted. We think the charge in this respect erroneous. A brakeman would not necessarily have the power to inform the public, and bind the company, as to the movements of its trains. It was not a question of law, but one of fact, whether, under the circumstances of the case, the great delay of the train, and the probable danger, the plaintiff was justified in relying on the brakeman’s statement, and whether he should have crossed in the manner suggested, or in some other way. For this error the judgment must be reversed. Judgment and order denying new trial reversed; a new trial ordered; costs to abide event. All concur.  