
    Joseph Recktenwald, an Infant, by John Recktenwald, His Guardian ad Litem, Respondent, v. Erie Railroad Company, Appellant.
    First Department,
    July 12, 1906.
    Negligence — infant struck by freight train — exclusion of evidence explaining failure to operate gates — verdict against weight of evidence.
    The duty of a railroad company to maintain its gates at highway crossings in working condition is not absolute but is discharged, as in the case ef other signals, by the exercise of reasonable care in construction and inspection.
    In an action to recover for an injury received by an infant who was struck by a freight train at a highway crossing, where the plaintiff alleges that the gates were not lowered, that no flagman was on hand, and that no signals were given by the approaching train, it is reversible' error to exclude explanatory evidence showing that ice had formed on the gates so that they could not be operated, and that at the time of the accident the ice was being removed, when the defendant has given evidence rebutting the other charges of negligence.
    When the testimony of three witnesses for the plaintiff that the accident occurred on the highway is contradicted by the testimony of seventeen witnesses,- most of them disinterested, that it occurred on defendant’s right of way some distance from the crossing, a verdict for plaintiff is against the weight of evidence.
    Appeal by the defendant, the Erie Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Bew York on the 28th day of June, 1905, upon the verdict of.a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Winfred T. Denison [Frederic B. Jennings with him on the brief], for the appellant.
    
      Rudolph Marks, for the respondent.
   Laughlin, J.:

This is an action for personal injuries alleged to have been caused by the negligence of the defendant.

Willow avenue is a public highway of Weehawken, B. J., running in a northerly and southerly direction. Four tracks of the defendant cross the avenue at grade and nearly at right angles. On the afternoon of the 17th day of January, 1903, the plaintiff, then ten years of age, was struck upon or easterly of the Willow avenue crossing by a freight train moving westerly on the second track from the south.

The defendant had long maintained gates and a flagman at the crossing to operate them. One of the charges of negligence contained in the complaint, and concerning which the plaintiff introduced evidence upon the trial, and which was submitted to the jury, was that the gates were up at the time this freight train came along, and that theretofore they had customarily been lowered over the sidewalks and carriageway to intercept vehicles and pedestrians, and give notice of the approach of a train. The defendant offered evidence which, if it liad been received, might have shown that without fault or negligence on its part, bat owing to 'the severity of the weather, ice had formed on/the gates so that they could not be operated, and that it was in the act of removing the same at the time in question, and its counsel informed the court that the purpose of the evidence was to show why the gates could not be operated. On the objection of counsel for the plaintiff that it was immaterial and irrelevant, this evidence was excluded, and counsel for the defendant duly excepted. We are of opinion that th.e exclusion of this evidence constitutes reversible error.

The charge of negligence was twofold : Fwst, that the gates were up and no flagman was on the crossing when they should have been down and a flagman should have been there; and, secondly, that no signal or warning was given from the train. The defendant presented evidence tending to show that the flagman was at his post, and that he performed his full duty, excepting that he did not lower the gates, and also that proper signals of the approach of the train were given, but it was not permitted to give evidence tending to relieve it of the charge of negligence concerning the gates. The plaintiff showed the fact that the gates were up, both as bearing upon the negligence of the defendant and his own freedom from contributory negligence. The jury may well have inferred from the exclusion of this evidence, with the charge of negligence concerning the gates still left in the case and submitted to them, that the duty of the defendant to maintain the gates in working condition was absolute. Manifestly, no such duty rested upon the defendant. Its duty, with respect to the gates, was the same as its duty with respect to other signals. The exercise of reasonable care in the construction and inspection of the gates to maintain them in working order, was a full discharge of the defendant’s duty with respect to the gates.

We are also of opinion that the learned trial justice erred in denying the defendant’s motion to set the verdict aside as against the weight of evidence, both upon the question of plaintiff’s freedom from contributory negligence and the negligence of the defendant. Plaintiff rested his case upon his own testimony and that of two other witnesses, His testimony is to the effect that he had been sliding on a pond on the westerly side of the avenue and south of the tracks, and that he met with the accident while crossing the tracks on the easterly walk, or a little to the west thereof on his way from the pond to his home on the northerly side of the tracks. He was corroborated, in the main, by the other two witnesses, but on the cross-examination of the plaintiff and of his witnesses, their testimony was considerably weakened. The defendant called seventeen witnesses, most of whom were disinterested, and testified positively that the accident occurred some distance east of the crossing and on the defendant’s right of way. The other facts testified to by them and by other witnesses render their evidence probable.

We are of opinion, therefore, that the preponderance of evidence shows that the accident did not occur upon the public highway and that the plaintiff was not free -from contributory negligence.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide event. Order filed.  