
    Valda M. Canfield, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed July 8, 1892.)
    
    ¡Negligence—Contributory.
    Plaintiff attempted to cross defendant’s tracks while driving in a covered wagon. There were six tracks at that point; two of the West Shore road; two of defendant’s, and two of the Lake Shore. It was a windy day, and there were box cars on the first West Shore track which came to the curbstone, and an engine on one of the Lake Shore tracks which was steamed up. Plaintiff testified that he looked for a flagman and to the west, but saw nothing but said engine; that he looked to the east as he passed the box cars, but his vision was obscured by smoke which came down by said cars, and he saw no engine and heard no signal until his horse was on defendant’s track, and that he was unable to pull him off before he was struck by an engine. A surveyor testified from measurements that at the south rail of the track with the cars one could see 134 feet to the east, and a short distance further 2,000 feet. Meld, that this did not conclusively establish that plaintiff was negligent in not seeing the same distance under the circumstances which surrounded him, and that the question was properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict of a jury, and from an order denying a motion for a new . trial made upon a case and exceptions.
    
      James F. Gluck, for app’lt; John Laughlin, for resp’t.
   Hatch, J.

It is not urged upon our attention that the evidence offered was not sufficient to authorize the court to submit and the jury to find negligence upon the part of defendant in the management and operation of its train at the place where the injury was inflicted, and as we think the evidence sufficient upon that question, it may be dismissed from consideration. The serious claim in this case is that upon the undisputed facts the plaintiff is shown to have been guilty of contributory negligence through which he suffered the injury complained of. The evidence of plaintiff authorized the jury to find that plaintiff was familiar with the crossing where he was injured; that upon the day in question he was driving southerly upon Fillmore avenue,, with a one-horse covered wagon; that his seat was about two feet from the horse, and the covered portions of the wagon projected beyond the seat, in a measure obstructing the view upon either side. At the place of injury the street is crossed by six tracks'; going so'uth the first to be reached is two branch tracks of the West Shore Railroad, controlled by defendant, next two main tracks of defendant, next two main tracks of the Lake Shore Railroad. Upon the second branch track of the West Shore Road there were standing some box cars which came close up even with the curb stone of the street and extended back some distance, cutting off the view of defendant’s tracks to the east. Upon the southerly track of the Lake Shore Road there stood a train with an engine attached which was steamed up, and upon which were two men. There was a strong wind blowing hard from the west. Plaintiff’s horse was struck by a train propelled upon the first track of defendant at a high rate of speed and produced the injury complained of.

Plaintiff testified that as he approached the track he looked for the flagman, whom he knew was stationed there, but he was not upon the crossing and was not visible; he further states that he looked to the west, saw the Lake Shore engine but saw no other train; that as he passed the box cars he looked to the- east, but his vision was somewhat obstructed by smoke which came down by the side of the cars; that he saw no engine and heard no signal of an approaching train until an instant afte'r passing the box cars, and when his horse was upon defendant’s track, when he attempted to pull his horse from the track, but was unable to do so before it was struck; that from the time he reached the first tracks his horse was driven upon a fast walk. Nearly all of these propositions were sharply controverted by the defendant, but we think they were all proper questions for the jury, and its finding thereon must govern.

The street at this point runs in a southeasterly and northwesterly direction, while defendant’s tracks cross about due east and west. The track upon which the box cars stood curves to the south as it reaches the street and to the north as it leaves it, thus making the distance from that track to the track upon which plaintiff was struck a number of feet closer upon the easterly side of the street, gradually lengthening the distance to the westerly side. It appeared by the testimony of a civil engineer called by defendant, and was not disputed, that the distance from the track upon which plaintiff was struck, in the centre of the street, was twenty-eight feet, gradually decreasing to twenty-three feet at the easterly curb-line of the street; that standing.upon the southerly rail of the track'with cars on he could see defendant’s main track upon which the train came 208 feet, and making allowance for the projection of the car over the line of the rail he could see 134 feet; five feet further south he could see 384 feet, and at ten feet could see 2,000 feet, no obstructions This witness also measured horses and wagons similar to that driven by plaintiff and found them to be about sixteen feet nine inches in length; this distance divided showed the horse about seven feet; the space between the horse and wagon one foot two inches, and the wagon eight feet three inches. Defendant claims that this testimony undisputed conclusively establishes that plaintiff could not have looked, for if he had he would have seen the train in time to avoid it, or if he looked he must have seen the train and attempted to cross in front of it, either alternative of which is fatal to plaintiff’s recovery. 1 am unable to agree with this contention.

The plaintiff testified that he was driving about the centre, a little east of it; if he was in the centre of the street and he looked the moment he passed the line of cars, ins horse would have been within from twelve feet nine inches to nineteen feet nine inches of the track upon which the train was coming; assuming that there was nothing to obstruct his vision, and that he looked without any confusion of sense or influenced by the conditions which surrounded him, if his horse was any longer than the one measured, or the space between it and the wagon further, he would have been still closer to the track; of these things we do not certainly know. Plaintiff was required to be alive and vigilant; he must protect himself from the west; he must see that the engine upon the track, which was steamed up, over which he must cross, did not move and thus leave him in a dangerous position between the tracks, as the tracks of all the roads were close together; he must look to the east also and protect himself from danger in that direction. This condition at the crossing was of defendant’s creation; it was a “ nasty ” day, a strong wind was blowing, tending to carry in an opposite direction the noise of the approaching train ; there is evidence of smoke obscuring the vision before the horse was struck; how long before does not appear. Does, the fact that a skilled engineer making measurements and taking observations for the single purpose of seeing how far away the train was visible, and uninfluenced by other considerations, conclusively establish that plaintiff was negligent because he did not see the same distance at the time and under the conditions which surrounded him, or did not see the train in time to stop his horse- and avoid it. This was all done, not in hours or minutes, but in the fraction of a minute; doubtless it took the engineer under-favorable conditions many minutes to verify his testimony, and it may be safely assumed that plaintiff adopting the same methods and trying to arrive of the same results would come to the same conclusions, but that is not the test; the test is, did he do other or different from what an ordinarily prudent person would have done under the circumstances. The position of defendant is conclusively answered by the case of Massoth v. D. & H. C. Co., 64 N. Y., 524, where the facts were much weaker than are here presented. We do not understand that this case as an authority has been shaken; on the contrary it has been cited with approval many times. Greany v. Long Island R. R. Co., 101 N. Y., 419; Salter v. U. &. B. R. R. R. Co., 88 id., 42.

Rot only is this case cited with approval, but the doctrine announced in the cases themselves are authorities to support the proposition here advanced. Startz v. Railroad Co., 42 St. Rep., 457.

We think no error was committed in submitting this case to the jury, and that the judgment and order appealed from should be affirmed.

White, J., concurs ; Titus, Ch. J., did not sit.  