
    Othneil Phelps, as Administrator, etc., of Mary Jane Phelps, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    Third Department,
    November 10, 1909.
    Railroad—negligence — collision at grade crossing—when erroneous charge not prejudicial—rights of railroad crossing highway in open country — nonsuit.
    A plaintiff is not injured by an erroneous charge if on the facts proved he is not entitled to recover.
    It is not of itself a negligent act to drive a train over an ordinary highway crossing in the open country at full speed, be it ever so great.
    Where a locomotive engineer approaches an ordinary highway crossing in the open country in daylight and there is no noise or anything unusual about the crossing calculated to prevent the whistle or an automatic bell from being heard, he is not bound to diminish his speed, but may assume that persons intending to cross the tracks will hear the signals and stop in time to escape injury.
    Evidence in an action to recover for the death of one who was killed by a train while driving across the tracks on a highway crossing in the open country examined, and held, that it was error to set aside a verdict for the defendant. Where circumstances point as much to the absence of negligence of a defendant as to his negligence, or point in neither direction, a nonsuit should be granted.
    Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Broome Trial Term and entered in the office of the clerk of the county of Broome on the 28th day of October, 1908, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for anew trial.
    This action was brought to recover damages for causing the death of the plaintiff’s intestate which is alleged to have been caused by the neglect of the defendant. About nine o’clock in the morning of March 19, 1906, the deceased was riding in a cutter drawn by a horse driven by Charles Hemstraught along a country highway leading from Owego to the village of Union, and while crossing the defendant’s tracks was struck by the engine of a passing train, going east, and was killed.
    At the close of the plaintiff’s evidence defendant’s counsel moved to dismiss the complaint, on the ground, among others, that the evidence does not show that the defendant was guilty of negligence- or that the plaintiff’s intestate was free from contributory negligence. The motion was denied and defendant’s counsel duly excepted. The motion to dismiss was renewed at the close, of the case upon the same grounds, and upon the ground that it now appears that the signal by bell and whistle were given and that the crossing bell rung; that this evidence is undisputed and there is no evidence upon which to predicate a finding that the defendant was negligent. The court denied the motion and defendant’s counsel excepted.
    
      H. Fred Lyon, for the appellant.
    
      Israel T. Deyo, for the respondent.
   Sewell, J.:

It appears from the opinion of the justice who presided at the trial that the ground upon which he granted a new trial was errors of the court in charging certain propositions in compliance with the .requests of the defendant’s counsel. Were it necessary to determine these questions I would not hesitate in holding, as did the learned justice, that it was error to say to the jury that if the deceased “ could have seen the approaching train had she looked when approaching the crossing, and failed to warn the driver, Hemstraught, the plaintiff is not entitled to recover.” But it is unnecessary to discuss this question or to determine if the other propositions were objectionable, as it is evident that the pfiaintiff was not entitled to recover, and, therefore, was not injured by the charge. (Baldwin v. Burrows, 47 N. Y. 199; Hubbell v. Great Western Insurance Co., 74 id. 246.) It was undisputed that the automatic bell upon the engine commenced to ring twenty rods or more from the crossing and continued to ring until after the accident; that the whistle was sounded ninety rods from the crossing, and again a short distance from the point of danger, and that the gong or bell at the crossing was ringing when the train crossed the highway. There was no proof that the track or engine or any of the appliances upon the train were defective or insufficient. It appeared that the engineer was on guard, and that nothing was done or omitted to be done on his part to charge him with negligence. He was not bound to stop his train or diminish its speed. It was light, his train was visible, and as there was no noise or anything unusual about this crossing calculated to prevent the whistle or the bell from being heard, he had a right to assume that the deceased and the driver would hear the alarm and stop in time to escape injury. (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164.) The speed of a train over an ordinary highway crossing in the open country, be it ever so great, is not of itself a negligent act. (Martin v. N. Y. C. & H. R. R. R. Co., 27 Hun, 532; 97 N. Y. 628; Warner v. N. Y. C. R. R. Co., 44 id. 465.) In Hunt v. Fitchburg R. R. Co. (22 App. Div. 212) this court said: “ If the warning given is timely and reasonable, the company is not negligent, no matter how rapidly the train may be run.” There was no evidence from which the jury could justly conclude that the bell or gong at the crossing was out of repair and did not give reasonable warning of the approaching train. On the contrary, it appeared affirmatively that the bell was not out of ord.er from the fact that it was ringing when the train crossed the highway. There was not, it is true, any direct evidence that it commenced to ring, as it ordinarily did, when a train was 1,800 feet from the crossing, but that is the only fair and reasonable conclusion to be drawn from the fact that it rung at all. It was also shown by the evidence of two persons, who were at the crossing within two hours after the accident. Each testilied that he then heard the bell ring when a freight train and when a passenger train were approaching from the west.

I think that the facts and circumstances proven leave no rational ground for an inference that the bell did not give fimely warning of the coining train. However that may be, there can be no doubt that they point as much to the fact that it did ring before the train reached the crossing as to a failure to give proper warning. Where circumstances point as much to the absence of negligence on the part of a defendant as to his negligence, or point in neither direction, a nonsuit should be granted. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420; Wieland v. D. & H. Canal Co., 167 id. 19; Lamb v. Union R. Co., 195 id. 260.)

For these reasons I think the order appealed from should be reversed, with costs, and that the motion for a new trial should be denied.

All concurred.

Order reversed, with costs, and motion for new trial denied.  