
    Mary Hennessy, Resp’t, v. Brooklyn City Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Railroads—Street.
    A railroad company has a paramount, but not an exclusive right, to its tracks.
    S. Same.
    While a person has a right to drive upon such tracks, he is bound to be vigilant in discovering an approaching train and quick to leave them at such time.
    3. Same—Imputed.
    A passenger in a wagon, struck by a train, is responsible only for his-own neglect, and the negligence of the driver cannot be imputed to him.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.
    
      Morris & Whitehouse, for app’lt; James C. Church, for resp’t.
   Barnard, P. J.

The defendant has a double track on the surface of Third avenue, Brooklyn. The tracks are laid about the middle of the highway and are made like the horse railroads, but are propelled by steam dummies. On the 25tli of December, 1891, the plaintiff with her husband and children were driving in a wagon upon this avenue from Gravesend. When they reached Third avenue they drove upon, and continued driving upon it towards Bay Ridge. They drove upon the right hand track according to the custom of travel upon this avenue, until they reached Seventy-sixth street. They saw a train approaching. At this point the right hand side of the highway was obstructed and they turned to the left across the defendant’s track. No train was visible and no bell or whistle was heard. There is a hill which obstructs the sight of an approaching train upon the left hand track at this point. Only a very short distance can be seen. As soon as they attempted to cross to their left the headlight of the train suddenly became visible. The plaintiffs turned to the right again; but before they could free themselves from the track, they were hit by the train and the plaintiff was injured. The proof of the defendant’s negligence was clear. The defendant had a paramount right to these tracks, but not an exclusive right. Fleckenstein v. Dry Dock R. R. Co., 105 N. Y., 655 ; 8 St. Rep., 32.

The plaintiff had a right to drive upon the tracks subject to a careful regard to the rights of the railroad company. The defendant drove its cars on a dark night with some fog, at a high-rate of speed, without warning by bell or whistle. The rule which requires notice at a place where a highway is crossed upon grade by a railroad, should have been observed. There is no negligence which can be imputed to the owner of the wagon, plaintiff’s husband. Having a right to drive upon the railroad track, he was bound to be vigilant to discover an approaching train and quick to leave it when he did discover it. The approaching train behind him must be avoided, and he could not go to the right by reason of obstructions being placed there. He got in this position by reason of a failure by defendant to give notice of its fast approaching train in an opposite direction. As soon as he discovered his danger he at once attempted to avoid it, but was barely too late. If the driver had been hurt there is no'such a case as would justify taking the question of his contributory negligence from the the jury. So the wife a mere passenger with him in the wagon, is responsible for her own neglect and cannot be defeated by the negligence of the driver. Hoag v. N. Y. Central, etc., R. R. Co., 111 N. Y., 199; 19 St. Rep., 80; Brickell v. N. Y. Central, etc., R. R. Co., 130 N. Y., 290; 30 St. Rep., 932.

The judgment and order denying new trial should be affirmed with coste,  