
    Mary Wendling, Respondent, v. International Railway Company, Appellant.
    Fourth Department,
    July 12, 1910.
    Railroad—negligence — collision at grade crossing—failure to give warning — knowledge of plaintiff that car was approaching — proof not establishing negligence. "
    In an action to recover for personal injuries caused by a collision between the . defendant’s trolley car and a wagon in which the plaintiff was riding with her husband, it is error to allow the jury to find the defendant negligent in failing • to give warning that the car was approaching if the plaintiff and her husband admit that they saw the car approaching 300 feet distant from the crossing.
    There can be no recovery in such action on mere proof that the car was moving fast and that the usual speed at that point was forty miles an hour, if there be nothing to show the position of the car at the time when it became apparent that the plaintiff’s vehicle would be driven upon the track, or that the car could have been stopped in timé to avoid the collision.
    Appeal by the defendant, the International Eailway Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the cleric of said county on the 22d day of November, 1909, upon the verdict of a jury for $1,225, and also from'an order entered in said cleric’s office on the 17th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward E. Franchot and John Pierce Langs, for the appellant.
    
      Alonzo G. Hinkley, for the respondent.
   Kruse, J.:

The plaintiff was hurt in a collision between the defendant’s trol-' ley car and a wagon in which she was riding. The accident occurred on July 2, 1907, between four and five o’clock in the afternoon,' at a highway crossing.

The defendant’s railroad, between the cities'of Buffalo and Tonawanda, is built mostly upon private right of way. It passes directly across the highway where the collision occurred, The highway is a country road, known as Englewood avenue. It does not appear how fast the car was running at the time of the accident, but the usual rate of speed between the cities is about forty miles an hour.

The evidence tends to show that the whistle was not blown or the bell rung as the car approached the crossing. The plaintiff was riding with her husband in a covered baker’s wagon. Their little child, one and one-half years old, was sitting between them. . The husb,and was driving. When they w¿re about 300 feet from the crossing plaintiff saw the car coming and informed her husband of its approach. The husband admits that he saw the car. He continued driving on without either he or his wife looking or paying any further attention to the car until they were upon the track, when the plaintiff spoke to him a second time, saying that the car was coming. She grabbed his arm and said : “ Joe, hurry up; here’s the car.” But he did not succeed in.clearing the track ahead of the car and the collision occurred.

The trial judge submitted to the jury as one of the grounds of negligence on the part of the defendant, the omission of the motorman to give signals of the approaching car; but both the plaintiff and her husband saw the car and knew that it was approaching.

The jury was also charged that the speed of the car alone was not sufficient upon which to predicate negligence; that it was the duty of the motorman to have his car under proper control at what-, ever speed he was approaching, but that it was not necessarily incumbent upon him to slacken his car if he could not have .fairly presumed that the plaintiff was in danger of being injured. It was left to the jury to say whether the motorman should have seen that these people were in danger and whether he handled the car recklessly as to not slackening, or otherwise.

The difficulty with that proposition is that there is no evidence to sustain such a finding. It does not appear at what speed the car was moving, beyond the bare fact that it was going fast, and that the usual speed was forty miles an hour, nor whether the motorman slackened speed or not, and the court so charged. There is nothing to show where the car was when it became apparent that the horse and wagon would be driven upon the track, nor that the car could have been stopped in time and the collision avoided.

Undoubtedly it was the duty of the motorman to be vigilant in approaching the crossing and to use all reasonable means to avoid the collision, even to stop his car, if necessary and he could do so; but the evidence fails to show that the accident was caused through any misconduct or want of care on the part of the motorman in that regard, or that the collision occurred through any other negligence with which the defendant is chargeable. I think, if either the plaintiff or her husband had been reasonably alert and watchful, the accident would not have occurred.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial ordered, with costs ■ to appellant to abide event.  