
    Mary Jane Comby, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence—duty to looh and listen at a railroad crossing ■—contributory negligence as matter of law.
    
    In an action brought to recover damages for personal injuries caused by the alleged negligence of the defendant, a railroad corporation, the evidence tended to show that the pláintifE, upon approaching, at about a quarter to eight upon a cloudy evening in May, a railroad crossing, with which she had long been familiar and at which the gates were raised, stopped, when some seventeen feet from the track, until a freight train had passed west, and then, although between that point and the track nearest her there was an unobstructed view of the track to the west for some 466 feet, walked towards it looking westerly once and was struck by something on the side of a locomotive or its tender connected with a train moving east upon the nearest track at a speed'of from forty to forty-five miles an hour.
    
      Held, that the plaintiff had failed to show that she was free from contributory negligence.
    Appeal by the plaintiff, Mary Jane Comby, from an order of the Supreme Court, made at the Wayne Trial Term and entered in the ■office of the clerk of the county of Wayne on the 16th day of November, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to .recover damages resulting from injuries alleged to have been sustained at the highway crossing of the defendant’s road at Savannah, N. Y., on May' 15, 1895, at about seven-forty-five p. m. At the close of the plaintiff’s evidence the defendant moved for a nonsuit on two grounds:
    
      “ (1) That she has failed to show negligence on the part of the defendant.
    “ (2) That she has failed to show that she herself was free from negligence contributing to this accident.”
    The plaintiff asked to have both questions submitted to the jury. Her requests were denied and an exception was taken, and the motion for a nonsuit was granted. A motion was made for a new trial on the minutes and denied, and the plaintiff appeals from the order denying the motion for a new trial.
    
      E. W. Hamm, for the appellant.
    
      Albert H. Harris, for the respondent.
   Hardin, P. J.:

Plaintiff, on the evening of May-15,1895, left her residence, which is situated on the west side of Main street in the village of Savannah, and started northerly along Main street in company with Mrs. Sedore, intending to reach the Methodist Church and attend a prayer meeting. As they passed up Main street towards the tracks of the defendant, they came to a gatehouse or flagman’s shanty which was situated about seventeen feet south of track Ho. 1, being the passenger track used by trains passing eastwardly. The gatehouse entirely shuts off the west view of track Ho. 1, “and this continues until -you pass by the building, and the building is five feet ten inches wide. Immediately after leaving the gatehouse, going north, you begin to see the tracks. The gate is 8 ft. 5 in. north of the gatehouse. At a point on the sidewalk, just half way between the gatehouse and the gate itself * * * you can see the clear southerly track or passenger track * * * up for a distance of 166 feet without any obstructions whatever. You can see a point 20 feet west of the north mail-catch post.” As the plaintiff was nearing- the crossing a freight train was approaching the crossing from the east and she waited for it to pass, and as soon as it uncovered-the track she started northward and was struck by an east-bound passenger train coming at the rate of from forty to forty-five miles an hour. She testifies, viz.: “ When we stopped we were a few steps north of the fiaghouse • Mrs. Sedore was with me. * * * ' When the train struck meT was between the sidewalk and the track, or gatehouse and track, the gate there, we call it the gate — the gates were up. I had not stepped over on the track yet, the train came along and hit me there, something about the engine or tender; of course I can’t tell what hit, and next I was on the ground, of course, going with it.” Her hand was bruised and she was otherwise injured. At the time of the accident the plaintiff was familiar with the crossing; she had lived just south of the crossing some thirty years, and all her communications with the village, including attendance uj>on church, were had by passing over this crossing. The accident occurred about seven-forty-five p. m., and the witnesses say the evening was cloudy, misty, dusky.

In the plaintiff’s direct examination she stated that she looked and listened while passing from the shanty towards the track. In the course of her cross-examination the following occurred: I ask you if you say you looked on that occasion because.you always looked ? A. I don’t know but that was it. Q. What I am after is whether you have any present distinct recollection of what you did on that occasion, or whether .you simply say you looked then because you always look when you are near a' crossing ? A. We always look for a train when we are near a crossing to go over it. Q. That is the reason you say you looked on that occasion, is it? A. I say I think it is. Q. And that is the only reason, is it? A. No, looking for a train of. course. Q. Is that the only reason ? A. There isn’t any reason only wé looked to see if there was a train coming, if the road was' clear. Q. Is there any reason that you say that, other than because you always looked ? A. I don’t know; I always looked of course. Q. Is that the reason you say you looked on that occasion? A. Most assuredly, it must have been. Q. You must have looked because you always look ? A. Because ■ we wouldn’t want to go and get run over, would we ? Q. There is nothing more to it than that ? A. Not that I know of. Q. You always look when you are near a railroad crossing? A. Yes, sir. Q. So you think you must have looked on that occasion, because you always looked ? A. I must; I know I looked. Certainly I know I looked. Q. Because you always looked ? A. I don’t know what answer else I can give you. I have no recollection of what I did on this night more than on any other particular night. 1 stood there south of the crossing while the train wras going by. I always look for a train, and that leads me to say I looked for a coming train on this occasion. There is nothing else that makes me say so. Q. Then after you had left that place south of the flagman’s house, and gone to the north of it, what did you do ? A. We looked again. Q. Did you stop? A. We were going slow; we didn’t stop stand still; we were just taking steps along. We didn’t stop stand still. We did not stop from the time we were standing south of the flagman’s shanty until we were struck. We were going leisur'ely along, just an ordinary walk.”

In desci’ibing the manner of the collision the witness said: “ I knew when it struck me and I was going with the train. I didn’t know what it was that struck me. Q. Do you know, as a matter of fact, you walked right into the side of the tender of the locomotive ?. A. I think the matter of fact is, the tender walked into ’ ns. I was not struck by the front of the locomotive. I was not on the track. Something along the side of the tender or cars hit my left arm and tore my clothes all off of me. Mrs. Sedore, who is here, says she pulled me out from under the wheels. I did not see that train or hear it at all. I did not know there was any such train coming; the first thing I knew was I was rolling across the street with the train across the road. . I just saw the locomotive when it passed, and it was something beyond that that hit me; must be on the tender, between the tender and the locomotive. I don’t know what struck me, something that stuck out. I saw the front of the engine go by just like a flash. It must have been something between it that hit me; got my clothes- all grease, so it must have been something about the engine or tender.- It wasn’t but a few steps that I took after I looked west before I was struck. It couldn’t have taken me more than five or ten seconds to get where we were. I can’t tell how many steps I took. I did not look west more than once after I left that shanty. I looked. up to the west and then I turned immediately and looked towards the east. I looked to the west and then to the east.”

Mrs. Sedore, who was with the plaintiff, testified, viz. : “ After we started up we went between the gatehouse and the track, and I kind of. halted and looked up west and listened to see if we could see or hear anything coming, any other train before we started for the track. Q. Did you do anything more? - A. Not until after wé started on. Q. Before looking east? A. We looked up east; I looked west first and heard nothing and cast my eye east before we started on. Q. Then did you start up again ? A. Start up again and just as we got between .the flaghouse, the gatehouse, and the track, kind of halted and kind of listened, and I looked west again to see, because I always do, looked west and then east before we started on. - * * As we started on, just after we started up, this train came from the west, this passenger train. I did not see it or hear it until it just went right by us. At that time I could not say just exactly how many steps we had taken from the time we stopped and looked. . We had not taken but a few. * * * The train or something hit us and knocked us both down, and as I laid there I saw the wheels go along, and it seemed as though it came up so still, and I kind of gathered myself; I know I fell and hit me, something did, I could not say what it was, and knocked me down, and as I gathered myself up I looked to see where she was, and she was going this fashion.”

This witness further says : “We looked west; we were between the flagman’s shanty, we call it the gatehouse, just coming between there and the track when we looked west. I cannot tell any nearer than that. We were closer to the track than we were back to the flagman’s house. When we looked or halted for breath we were between the shanty and the track. I think we were nearest the flagman’s house, I can’t tell exactly, but between the track and the flagman’s. That is as near as I can get to it.”

This witness states that there was no noise there; nothing to distract their attention. She was then asked: “ Q. The first thing you knew you walked right into the side of this locomotive ? A. That came right into us. Q. If you had not been there it would not have struck you? A. Certainly not. We would not have walked right into it, I don’t think. Mrs. Comby was on my right; she had taken one step, one foot further ahead than I; that is why it caught hold of her and knocked us both down; she did not have hold of me ; she did not have my arm.”

This witness also testified, viz.: I always look and listen before I come over the tracks ; I never fail to. There was no more reason why I should do it on that night than any other night that I know of. I am speaking from my general recollection. C^. When you say that you always look and listen and, therefore, you must have looked and must have listened that night —. A. Certainly I did. Q. That is the ■ process of reasoning you go through; you don’t single out this night any more than any other particular night to testify to it ? A. 1 don’t know as I do. I look every time we go by, always like to know whether there was a train coming or going. Q. You have got ho different or other recollection about this night than any other night when you crossed those tracks? A. None, particular, as I know of. I never saw this train at all nor heard it until it whizzed right by.”

Considering the fact that the view between the shanty and the track, a distance of some 17 feet, was unobstructed westwardly for A'66 feet, in connection with the testimony given by the plaintiff and by her companion, we are of the opinion that the trial judge was warranted in holding, as matter of law,, that the evidence did not establish that the plaintiff was free from contributory negligence at the time she received thé injuries complained of. The plaintiff failed to exercise the care which'a prudent person should have exercised under- the circumstances surrounding her at the time she approached the highway crossing of the defendant. (Smith v. N. Y. C. & H. R. R. R. Co; 44 N. Y. St. Repr. 55; S. C. affd., 137 N. Y. 562; Landrigan v. B. H. R. R. Co., 23 App. Div. 43.)

The facts disclosed by -the evidence in this case differ from the facts disclosed in Seeley v. N. Y. C. & H. R. R. R. Co. (8 App. Div. 403.) That case was said to be upon the border line “ which separates a question of fact from one of law; ” and it was rested largely upon the ground that the party injured and her companion “ looked . in -each direction before going upon the track upon which the accident happened.”

Appellant calls our attention to Greany v. The L. I. R. R. Co. (101 N. Y. 419). While it was said in that case that the plaintiff is not bound to see, it was also said that lie is bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances.”

The evidence before us'does not indicate that the plaintiff used that care and caution which, under the circumstances, she ought to have Used to avoid being injured by the approaching train from the west.

Our attention is invited to the case of Miller v. N. Y. C. & H. R. R. R. Co. (82 Hun, 164; S. C. affd., 146 N. Y. 367). ‘in that case it was said: “ Here there is a conflict as to some of the material facts relating to the question of the deceased’s freedom from negligence ; ” and upon looking into the facts in "that case they are found to differ very essentially from the facts disclosed by the case now in hand.

' "We recognize the rule that, where there is a nonsuit, the plaintiff is entitled to the most favorable construction of the evidence, and to the most favorable inferences that may be drawn therefrom ; and we have applied that rule in considering the evidence in this case,, and we are of the opinion, after due consideration of the rule applied to the evidence before us, that the plaintiff has failed to establish her freedom from contributory negligence. The train which was approaching the crossing was the usual train passing that station at seven-forty-three, and on this occasion was a few minutes late, and was coming at apparently its usual speed of forty to forty-five miles an hour, and with the sound created by such a train, if the plaintiff had been alert and using that care and caution which persons approaching a known place of danger ought to have exercised, she would not have been injured. We think the trial judge committed no error in granting a nonsuit.

All concurred.

Order affirmed, with costs, and judgment ordered for the defendant, with costs.  