
    Walter E. Edgerley, Respondent, v. The Long Island Railroad Company, Appellant.
    .flegligence— verdict in favor of a bicycle rider thrown upon an engine through the alleged improper towering of a gate — not disturbed on appeal.
    
    Jn an action to recover damages for personal injuries sustained by the plaintiff while attempting to cross the defendant’s railroad tracks at a crossing which was protected by gates operated by a gateman, the plaintiff, who was riding on the front seat of a tandem bicycle at the time of the accident, contended that rthe accident was caused by the act of the gateman in suddenly lowering one of :the arms of the gates between the plaintiff and his companion rider, in consequence of which the plaintiff was thrown in front of an approaching engine. •This contention was supported by the evidence of the plaintiff and four other witnesses, one of whom was the plaintiff’s companion, but the credibility- of ■some of them was shaken by evidence of contrary statements made by them shortly after the accident. The defendant’s contention, which was supported by eight witnesses, all of whom were, or had been, connected with it, was that the plaintiff ran into the closed gate and was thrown over it in front of the engine.
    
      field, that there was no such preponderance of testimony in favor of the defendant as to justify the Appellate Division in interfering with a verdict for the . plaintiff.
    - Appeal by the defendant, The Long Island Railroad Company, -from a judgment of the Supreme Court in favor of the plaintiff, .entered in the office of the clerk of the county of Kings on the 11th day of February, 1899, upon the verdict of a jury for $21,500, and Also from an order entered in said clerk’s office on: the 15th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      William J. Kelly, for the appellant.
    
      Samuel D. Morris, for the respondent.
   Goodrich, P. J.:

About half-past ten o’clock on the evening of October 30, 1897, the plaintiff and one JVIacFarland were riding a tandem bicycle-along Sixth avenue, Brooklyn-, the plaintiff occupying the forward-seat, intending to cross the tracks of the defendant where Sixth avenue meets them. The defendant’s roadbed at the location in-question extends along the middle of Atlantic avenue in an easterly and westerly direction, while Sixth avenue approaches Atlantic from the south but does not cross it. South Portland avenue is on the-north side of the track, deflects slightly to the west and-is practically a continuation of Sixth avenue. The defendant’s roadbed, which is about twenty-five feet in width, is inclosed with iron fences, except that at various places, where streets cross, there are gates. Outside the fence and on the southerly side of Atlantic avenue lie the tracks of a trolley road, the crossing of which at Sixth avenue, as well as that over the defendant’s tracks at Sixth avenue, is filled with planking. On each side of this railroad crossing and in the-line of the fence above mentioned is a gate operated by a flagman-stationed there. These are what are known as arm gates,” with a-wire hood or screen hanging under each one. There are four gate posts to which the larger ends of the arms are respectively attached, one at each of the corners of the crossing. These gates are lowered- and raised by two cranks operated by the gateman and do not fall by force of gravity or automatically. Each gate consists of two strips in a truss form tapering to a single strip- of wood, until at-the end it is one by one and one-half inches in size. This end when-the gate is down rests near the center of the opening in the iron fence upon an iron rod attached to the end in such a manner that it-assumes a position at right angles with the gate only when the latter is down. The line of the gates when they are lowered and resting on their respective rods is parallel with and four feet from the surface of th-e crossing. The hood or screen hangs beneath the gate- and reaches to within about twenty inches of the ground when the-gate is down. The utmost height of the bicycle'was three feet and four inches. The gates are not rigid where they meet at the center when down but yield to pressure. The rules of the defendant-require the setting of the gates whenever trains are about to pass-the crossing.

On the night in question the plaintiff and his companion, who were familiar with the crossing, were approaching it along Sixth .avenue, intending to cross on their tandem over to South Portland .avenue, and while they were in the act of crossing the accident •occurred which resulted in the injuries to the plaintiff which form the basis for this action.

The evidence offered by the plaintiff and by the defendant differed radically on what we consider the crucial point of the controversy. The theory supported by the plaintiff’s evidence is that at -the time of the accident the gates were wide open or raised arid -that there being nothing to give him warning of any approaching ■train, he with his companion started on the tandem to cross the tthe tracks, having decreased its speed from seven to four miles an :hour, when an engine going east approached the crossing, in .conse.quence of which the gateman suddenly lowered the gates on the south ¡side, dropping one of the arms between the two riders, the effect of ■which was a sudden stoppage of the tandem, projecting the plaintiff -onto the engine, under which he rolled and received such injuries as to compel the amputation of his legs, one at the knee and the other between knee and ankle. ■

There was evidence supporting the contention of the defendant ■,that the gates had been lowered by the gateman for an engine corn-ting from the east and going west and that they remained down as a •protection while another engine, the one which caused the injury to .the plaintiff, was going east at a slow rate of- speed; that the plaintiff ran. into the closed gate and was thrown from the tandem over •onto the engine ; that either MacFarland dismounted from the tan- ■ dem or that it was overturned and he fell to the ground unde^.* the .post outside the gate.

The court, in an admirable charge, to which we find no tenable • exception, submitted to the jury the question which of these theories was true. The jury found a verdict for the plaintiff whiclA ■though large, is not claimed by the defendant to be excessive. The judgment, howéver, is attacked as being against the evidence. The earnest argument of the counsel for the defendant has required .a' careful analysis of all the testimony in the case. It would serve no useful purpose to give in detail the method of analysis or to •weigh the-credibility to be given to the testimony of the witnesses on each side. It is evident that the crucial point in the case is the ■condition of the gates, whether being open they were suddenly •dropped between the tandem riders, or whether being closed, the plaintiff and his companion ran into them. There were five witnesses who testified that the gates were open and eight who testified that they were closed, as follows:

For plaintiff.— O’Connor, MacFarland, Willard, Carroll, and Edgerley.
For defendant.— Bender, engineer; Grape, brakeman ; Dercher, brakeman ; Carey, fireman; Duffy, conductor; Halsey, fireman ; Whitney, engineer, and Keating, gateman.

It- will be observed that, in addition to the plaintiff and his companion, there were three witnesses for the plaintiff; and while it is true that the credibility of some of the plaintiff’s witnesses was more or less shaken by evidence of contrary statements made by them shortly after the accident, it is also true that all of the defendant’s witnesses on this point were or had been connected with the defendant company. It would have been error to have dismissed the complaint. There was a clear question of fact depending upon the credibility to be given by the jury to the testimony of the witnesses for each party to the controversy. Whatever may be our own judgment as to the conclusion at which the jury ought to have arrived, we adhere to our opinion in Rippe v. Metropolitan Street R. Co. (35 App. Div. 321), where we said (p. 322): “ There is no such preponderance of testimony in the record as to justify interference with the verdict. We cannot say that, as matter of law, after giving the proper weight to all the evidence, it cannot be right, * * * or that it is so contrary to the preponderant proof as to startle by its absurdity or to suggest a suspicion of evil influence.”

We have carefully examined the exceptions both as to evidence and charge, and we cannot discover that any of them require a reversal of the judgment.

The judgment should, therefore^ be affirmed.

Woodward, J., absent.

Judgment and order unanimously affirmed, with costs.  