
    Ephraim Bond, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Negligence—Railboad cbossing—Gates.
    A traveler approaching a railroad crossing guarded hy gates is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded.
    S. Same.
    One S., on approaching defendant’s tracks, waited for a train to pass, when the gates were raised and the gate tender signalled him to come on. His view was obstructed by a train, and, on attempting to cross, his wagon was struck by a fast express train, and the box thereof thrown upon plaintiff, who was walking on the sidewalk. Held, that it being a descending grade, it was not necessarily negligent for S. to go on the_ track on a trot, nor, if on first seeing the train close upon him, he did not act with the best judgment in whipping up his horses, ■ could he be held negligent as matter of law, and that a direction of a verdict for defendant was error.
    Appeal from judgment in favor of defendant, entered on verdict directed by the court.
    Action to recover for damages, alleged to have been caused by defendant’s negligence. One Struing, who was driving an empty coal wagon, approached defendant’s tracks at a crossing and waited for a freight train to pass. After it had passed, the gate-man raised the gates and signalled to Struing to come on, which hé did at a trot, the grade being a descending one. When he arrived on the third track he discovered a train approaching, and the gateman called to him to stop. Struing whipped up his horses and had almost crossed when the train struck the hind end of the wagon, crushed the wheels and threw the box upon the plaintiff, who was walking on the sidewalk, injuring him severely.
    
      R. J. Sanson, for appl't; C. D. Prescott, for resp't.
   Putnam, J.

The questions involved in this case are so well settled and have been so an opinion is unnecessary.

The trial court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. Rehberg v. Mayor, 91 N. Y., 141.

There was testimony given tending to show negligence on the part of the defendant in the management of its gates, which, if submitted to the jury, would have sustained a verdict for the plaintiff. Kane v. N. Y., N. H. & H. R. R. Co., 31 St. Rep., 741; 132 N. Y., 160; 43 St. Rep., 494; Phillips v. N. Y. C. & H. R. R. R. Co., 25 id., 91.

If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one of law for the court.

A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. Kane v. N. Y., N. H. & H. R. R. Co., 132 N. Y., 160; 31 St. Rep., 741.

It appears that when Struing approached the crossing the gates were down and he stopped his team. A train passed and the gate tender raised the gates, at the same time signalling Struing to cross. Struing’s view was obstructed to the west by buildings, and by a train standing on the track. Being invited by the open gate, and by the gate tender, to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to. allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching train so nearly upon him, and was called to act suddenly in the fact of great danger, did not act with the best judgment in whipping up his horses,can he be held as a matter of law negligent Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y., 158.

It is only in rather exceptional cases that the question of contributory negligence can be taken from the jury. Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 364; 22 St. Rep. 697.

Judgment should be reversed, and a new trial granted, costs to abide the event

Mayham, P. J., and Herrick, J., concur.  