
    Benjamin F. Wilber, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — accident at a railroad crossing■—failure to look as a person crosses at each one of several tracks ■—absence of a flagman and of signals.
    
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, between one and two o’clock in the afternoon, was walking toward a crossing where the defendant had five tracks and another corporation two. The plaintiff crossed first the two tracks of the latter corporation, then he crossed the defendant’s two freight tracks and its so-called Troy track, between which and the next track (a passenger track known as No. 2) the distance was fifteen feet. When two or three feet past the Troy track the plaintiff halted and looked in both directions, but saw nothing and heard neither bell nor whistle; the flagman, of whose usual employment at this place the plaintiff knew, was not at the crossing to give warning. Plaintiff went on and was struck by defendant’s fast mail running at its usual speed. The wind was blowing and flying snow made it impossible to see across the street. The plaintiff was nonsuited.
    
      Held, .that the case should have been submitted to the jury;
    That even though the plaintiff looked but once before he started to cross track No. 2, he was not necessarily guilty of such negligence as to preclude his recovery as a matter of law;
    That the question of his negligence was one for the jury, inasmuch as the surrounding circumstances were to be considered and their effect upon men reasonably prudent;
    That the fact that witnesses for the plaintiff testified to their ability to see the trains at a greater distance than the plaintiff testified that he could see by reason of the blowing snow, did not necessarily show that the plaintiff might have seen the train when he stopped and looked, nor did it show that, in the position in which he was, he could see farther than he said he could;
    That the fact that the flagman did not warn the plaintiff was important on the question of his contributory negligence, and that this, taken in connection with the fact that the plaintiff heard no bell or whistle, would entitle the jury to find that the plaintiff had a right to suppose that the crossing was safe.
    Appeal by the plaintiff, Benjamin F. Wilber, from a judgment of tlie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 23d day of November, 1895, upon a nonsuit granted by the court after a trial at the Schenectady Circuit before the court and a jury.
    The action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant.
    
      
      P. C. Dugan and I. H. Maynard, for the appellant.
    
      S. W. Jackson, for the respondent.
   Merwin, J.:

On December 30,1894, between one and two o’clock in the afternoon, the plaintiff, as he was walking westerly along the northerly side of State street, in the city of Schenectady, and across the tracks of defendant, was struck and injured by the fast mail train of defendant coming from Albany and not stopping at Schenectady. It was running at the usual rate of speed. There was no warning by flagman as required by the ordinances of the city. Eor the injuries received by the plaintiff he sought to recover of the defendant damages upon the ground that it was negligent in not giving proper signals or warning of the approach of the train. A nonsuit was granted on the ground that the plaintiff did not show himself free from negligence.

At that crossing the defendant had five tracks and the Delaware and Hudson Canal Company two tracks. A traveler, coming in the direction plaintiff did, first reached the two tracks of the Delaware and Hudson Company, then the two freight tracks of defendant, then the Troy track, so called, of defendant, then track No. 2 upon which the train in question was running. There was a flagman’s shanty or station between the Delaware and Hudson tracks and the defendant’s freight tracks, and also between the Troy track and No. 2. The defendant’s tracks, according to the map in evidence, as they leave State street going towards Albany curve westwardly, so that the trains, as they come in, come from a southwesterly direction. The defendant had for several years kept a flagman at the crossing, whose duty it was to give warning of the approach of the trains by waving a flag. The custom was for the flagman to be out in the street in the center of the roadway waving his flag on the approach of trains, and this custom was known to the-plaintiff. The street between the curbing was about sixty feet wide and the sidewalk on each side -was about twenty feet wide.

The weather was cold, below the freezing point, and there had been on the twenty-seventh of December a fall of snow to the extent of fifteen inches as measured at Albany, and the temperature was then,, and to and including the thirtieth, abnormally low, not at any time above freezing. The wind at Albany on the thirtieth between one and two o’clock was moving from the south at a velocity of thirteen miles an hour.

The plaintiff testifies that as he came down the street and reached the Delaware and Hudson tracks he stopped and looked up and down ; I did not see any train nor hear any, but I stopped and looked; then I went on and came past the Troy track and then halted and looked up and down and saw nothing and started on. I heard nothing. I went on to go over the tracks. There was a little girl just ahead of me. She went on. I got onto the track a little piece and heard something and undertook to jump back and I was struck. After I got past the Troy track I halted and looked down toward Albany and up toward the depot. I did not see or hear any trains. There was no whistle blown or any bell rung. I proceeded on and got on the track, then the train hit me; it was right onto me; I kind a jumped back or tried to jump back and it struck me. I jumped to get out of the way and was hit. Before 1 got down to the Troy track I passed the flagman who stood there; stood right on—in about that first shanty, or flagman’s station ; he stood there with his flag and his hand down and I passed right by him, I would say about within two feet of him; when I came towards him we were face to face. He did not say anything to me about the train coming; he did not wave any. flag. * * * In coming down that afternoon there was quite a considerable wind blowing and snow flying. As I was coming across this crossing I could not see more than twenty-five or thirty feet, I don’t think at the utmost towards Albany. * * * My eyesight has not been first rate for a number of years. I was about two or three feet, I think, past the Troy track before I looked towards Albany and towards the depot. Next to the Troy track was the track upon which I was hit; a little girl passed on ahead of me there. Toward Albany I could not see across the street. I looked there for the flagman and there was none there only the flagman I saw on the street when I passed him on the street. * * * There was from twelve to fifteen inches of loose snow on the ground at that time. The wind was blowing strong. When I crossed the Troy track I halted and listened and heard no bell or whistle.”

McDonald, a witness for plaintiff, saw the train after plaintiff was hit and when the train was about half past the crossing. The witness was in a store 80 to 100 feet distant from the train. Another witness for the plaintiff, upon his cross-examination, testified that he was going down State street on the canal bridge at the time of the accident, and from that point could see the cars as the train nassed across the street, and that he was about 250 feet distant.

The distance between the Troy track and track No. 2, where the foot passengers walk, is a distance of fifteen and a half feet in the widest part. According to the map it is about twelve and a half feet in the narrowest part. The plaintiff testifies that he thinks he was about two or three feet past the Troy track when lie looked. The defendant claims that the plaintiff was, as matter of law, negligent in not looking again before he started to cross No. 2. To support this proposition the case of Fowler v. N. Y. C. & H. R. R. R. Co. (74 Hun, 141; affd., without opinion, in 147 N. Y. 717) is cited. That case involved an accident at this same crossing, but on the other side of the highway, and to a person coming eastwardly. At the corner there, there was a building called the express office, then a spur track running beside the building southerly from State street, and upon this there was, at the night of the accident, a car standing which obstructed the view southerly. Then came track No. 1 and then No. 2, upon which the train was coming. The only evidence on the part of plaintiff as to looking and listening was that when the express building was reached, and when he was yet some feet distant from the first track, he looked both ways. He made no additional attempt to gain a view of the tracks after passing the obstruction to his vision, caused by the presence of the standing car. In the present case the plaintiff looked at a point where, aside from the flying snow, there was no obstruction, and after arriving in the space just preceding the track upon which he was hit. In this respect, as well as in the surrounding circumstances, the Fowler case seems to be materially different from the case in hand.

The fact that a party who looked did not look at the precise place and time where, and when looking would have been of the most advantage, does not necessarily, as matter of law, bar a recovery. (Andrews, J., in Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 526.) It is usually a question for the jury, inasmuch as the surrounding circumstances are to be considered and their effect upon men reasonably prudent. (Greany v. Long Island R. R. Co., 101 N. Y. 419, 427; Glushing v. Sharp, 96 id. 677; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 355, 364; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 652.) In such cases, as said in tlie Parsons case (p. 364): “ The question is whether the injured party, under all the circumstances of the case, exercised that degree .of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must, in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” In the Glushing case it is said: " He looked both ways, and whether, under all the circumstances, he should have looked again, or continued to look, was for the jury to determine.” The party was bound to make all reasonable effort to see that a careful, prudent man would make under like circumstances ; he was not bound to provide against any certain result. (Shaw v. Jewett, 86 N. Y. 617.)

The fact that witnesses for plaintiff testified to their ability to see a train as it crossed the street at a greater distance than plaintiff, as he testified he could see by reason of the blowing of the snow, does not necessarily show that plaintiff might have seen the train when he looked, or even that in his position he could see farther than he said he could.

The absence of any warning from the flagman is a material element on the question of the contributory negligence of the plaintiff. (McNamara v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 650 ; Dolan v. Del. & Hud. C. Co., 71 id. 285; Wilbur v. Del., L. & W. R. R. Co., 85 Hun, 155.) In the MeFamara case it is said of the care required from the party injured: “ She had the right to rely upon the presence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train by ringing the bell and sounding the whistle.” The same principle is applicable as in cases where the crossing is guarded by gates. “A traveler approaching a railroad crossing guarded by gates 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.) An open gate is said to be a direct and especial assurance to the traveler that the way is safe. (Danforth, J., in Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234, 241.) Whether in the present case the plaintiff relied on the absence of the flagman as an assurance of safety was for the jury to say.

Giving, as we must, on the consideration of the propriety of the nonsuit, that construction to the evidence that is most favorable to the plaintiff, a case was, I think, presented for the jury to decide. It should not be said, as matter of law, that the plaintiff did not sufficiently look. He had a right, as the jury might find, to suppose, from the absence of the flagman and hearing no bell or whistle that the crossing was safe. The train was a fast one, and whether by the exercise of reasonable care lié could have avoided the injury was, as in the MoPfama/ra case, a question for the jury to answer. In the McPfatnara case the view was obscured by a volume of smoke from a passing engine. Here the vision was obscured by the flying snow.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  