#### Sophia Oldenburg *et al.,*Adm’rs, Plff’s, *v.*The New York Central & Hudson River Railroad Co., Def’t.

*(Superior Court of Buffalo, Special Term,*

*Filed February, 1890.)*

1. Negligence—-Bailboads.

Plaintiffs’ intestate was injured while crossing defendant’s tracks in Buffalo. There were cars standing at that place which obstructed the view of the tracks and extended over the walk. Deceased waited for a train to pass and when the gates were raised started to cross at the same time that a woman driving a wagon entered the crossing from the other side. The gateman who was on the other side then started to lower the gates and called to deceased, as he testified. Deceased passed the standing cars and was immediately struck by the tender of an engine which was backing rapidly, *field,*that the questions of negligence were for the jury to determine and that it was not error to refuse to direct a verdict for defendant.

*•%.*Same—Evidence.

Evidence as to how deceased was injured when they took him from under the engine is competent as a statement in part of the accident and to determine his position, when struck, by the character of the wounds.

3. Same.

Ordinances of the city prohibiting the running of engines at a rate exceeding six miles an hour is competent evidence in such an action.

*837This is a motion made upon a case and exceptions to set aside a verdict for $2,500 in favor of the plaintiffs, and for a new trial.

On the 15th day of September, 1888, Charles Oldenburg, the plaintiffs’ intestate, while attempting to go southward across the defendant’s railroad tracks in Chicago street, in the city of Buffalo, was killed by being struck by the tender of an engine backing down on one of the defendant’s tracks. Where the defendant’s road, going west into the city, crosses Chicago street, there are three tracks and two or three switch tracks which connect with the main tracks within the boundaries of Chicago street. The tracks across the street are guarded by bars or gates on both the southerly and northerly sides of the tracks, and by a gateman or flagman stationed there. On the day of the accident a train or line of standing cars was occupying the middle track on the west side of the street, shutting from view the third track, west, to one entering upon the crossing from the north. The car next to the street extended half way over the sidewalk. The deceased -was going south, and when he reached the north side of the defendant’s trackway the gates were down. He stood there until a passenger train going into the city depot on the north track had passed. The gates were then raised, and deceased advanced upon the crossing, and at the same time a woman with a horse and wagon entered from the' south side. The southerly rail of the middle track was seven feet from the northerly rail of the third or southerly track. The width of the cars is such that the standing cars on the middle track projected over the track two feet and five inches. The cross-beam of the tender projected over the rail two feet and six inches. In crossing, Oldenburg walked on the sidewalk on the westerly side of the street, on which side the standing car projected over the sidewalk, and, immediately after passing the standing car, was struck by the tender and killed.

The plaintiffs’ witnesses gave no testimony whether the deceased looked both ways for approaching trains. The gateman testified that before the engine and tender came he commenced to let down the gates, and called to the deceased to stop; that deceased looked up, then looked down, kept on, and was struck by the tender; and other witnesses for the defendant testified that he did not look up the third track upon which the engine and tender were coming. It was impossible, on account of the standing cars, for deceased to see up the third track until after he had passed the car that projected over the sidewalk. The gateman testified that he stood by the southerly gate all the time and watched the deceased while crossing. The plaintiffs’ witness, Christensen, testified that after the horse and wagon was allowed to enter on the crossing, the gateman went into the street upon the crossing, looked up the track upon which the engine and tender afterwards came, and then went back and commenced to lower the gates. It takes but a few seconds to let down the gates. They were about half down when the plaintiffs’ intestate was struck. The deceased while crossing was walking pretty fast. The tracks of the Lake Shore railroad were immediately south of the defendant’s tracks, and those of the New York, Lake Erie and Western *838Railroad Company immediately north, parallel with the defendant’s road.

*Isaac S. Signor,*for pl'ffs; • *James F. Gluclc,*for def’t.

Beckwith, Ch. J.

On the trial, as well as on this motion, the defendant’s counsel strenuously urged the correctness of his position that on the whole case the court should have directed a verdict for the defendant. With deference toward the learned counsel for the defendant, I cannot help thinking that the evidence a® to the tracks, the crossing, the standing cars, the backing engine and tender, the rate of speed, the irregular “ going in ” of engines, the conduct of the gate tender as given by the plaintiffs’ witnesses, and the circumstances of the situation generally made-a case for the jury on the question whether the defendant was-chargeable with negligence. There were the important circumstances that it was an engine with only a tender, and that it was backing down concealed from view by standing cars, and at an undue rate of speed, and where there were numerous'tracks, presumably with engines, bells, whistles, etc. The ingoing train was not yet out of hearing. Those circumstances also affect, the question of the intestate’s contributory negligence. An engine-with only a tender attached, as every person much about railroads may have observed, moves often with a dull, rumbling sound, that scarcely gives a warning where the air is filled with other sharp vibrations. ■

This fact may partly explain the frequency of accidents caused by backing engines separated from their trains. This is the second case tried this term for killing a person by backing over him with an engine and tender, and where the circumstances' did not require rapid running. A bell, to be sure, might often be a sufficient signal and protection to a foot passenger, but ■ where there are a multitude of tracks and confused noises, whistles and bells, as there are about the locality- in question,, proof of the ringing of a bell should have just that weight as¡ evidence which the jury think was its value as a signal to the passenger. At the place where Oldenburg was killed there were several roads, each with several tracks, crossing the street. An-inexperienced person, not familiar with the ground, in attempting to go across, would be likely to feel that there was danger ahead of him, and danger behind, danger at the right, and danger at the left, and that he was in the hands of Providence or the gate» tender, and without the ability to tell from what point danger might approach. Besides, the cross-walk of plank, which the foot-passenger must follow, was rough (Davis’ testimony), and yet, if a pedestrian should fall under an engine because he did not look where he stepped, he would be liable on a trial to be non-suited for his negligence in that respect.

I think the question of contributory negligence was properly left to the jury. The question was submitted to the jury by the court, as appears from the extract from the charge, upon the extremes of the case, and perhaps with some injustice to the ¡Dlaintiff, upon the assumption of the accuracy of the testimony of some of *839the defendant’s witnesses to the effect that Oldenburg did not look, nor pay any attention, to the possibility of trains approaching, nor give any heed to the gateman’s cries and signals. This testimony could possibly express only what were the appearances to the witnesses. It does not follow because Oldenburg did not right-about-face to the west and the east that he did not give reasonable attention. The testimony of the old man who was the gate tender, strikes me, when I consider the circumstances and the duties then bearing upon him, the impending danger to the woman in the wagon, and the other circumstances, as being “ too particular on particularities in particular,” when he tells that he noticed every step and incident of the conduct of the intestate in attempting to cross the tracks, that he heard the bell of the backing engine ringing, and other particulars. The jury might have thought his testimony not weightier than the probabilities derivable from the circumstances. Besides, he was disputed as to what he did himself by Christensen and Wareing.

To my mind the circumstances made it doubtful whether the act of the gateman in letting down the gates and calling out and motioning to the deceased were in time to be of any avail to Oldenburg. He had been standing waiting at the north side for the gates to open. He saw the 'gates lifted and a horse and wagon allowed to enter upon the crossing from the opposite side where the gate tender stood. Any man in the world who had not been technically indoctrinated with the caution to “look both ways,” would have taken it for granted that it was safe to go across at that time ; that it would be safe for the space of time it would take the woman with the old horse to cross. But suppose that he was bound to look. We must remember that the ordinary man in going across the tracks would have no reason for expecting danger on the third track more than on the others; that he would naturally fear the existence of danger on all sides and could hardly be expected to give deliberate attention to the third track, “ looking west.” But when Oldenburg reached the middle of the second track, if not too close to the projecting car, he might, perhaps, as suggested by defendant’s counsel, have been able to see a few feet up the third track; but, if so, he probably saw that the track, as far as it was in his sight, was then clear. But if he walked close to the end of the projecting car, which is probable, since, from its projecting over the walk, unlawfully, it narrowed his passageway, after clearing the end of the car, he had left a space equal to one step or a step and a quarter before the cross-beam or extreme projection of the tender moving across the line of his direction would strike him. Now take a man in that situation, it was possible that he could save himself by stopping, if he dared to stop, and putting his head out from the side of the standing car and looking up the third track, or perhaps by taking one step beyond the car and stopping, which step and stopping he must have calculated upon beforehand. But it was for the jury, as it seems to me, in view of all the circumstances, to say whether that could be absolutely required of the man. If the court had held, as a matter of law, that his omission to look in*840stantly westward took away a right of action, then the court would have decided that with respect to a person who may be crossing railroad tracks there is no such thing as mutual care and. contributory negligence, but that all the care is on the man who-walks over the tracks; for, if such a degree of care is first required by law, it being sufficient for absolute safety under all circumstances, then the man exposed to the danger needs no help from the defendant in regard to his safety.

Such a holding would exclude a consideration of certain other facts for which the defendant was directly responsible, as, for example, the stationing of trains of cars in such a way as to obstruct the view of persons having occasion to travel on an important business street, which, if lawful in itself, must qualify the duty of the defendant in other respects; the standing of the particular car over a part of the foot-walk, thereby restricting the-line of vision up the third track; and allowing engines to. comedown from behind the cars upon the crossing at a rate of speed which violates the ordinances, and without any fixed times of running. It is not surprising that the gate tender should let. persons, as he did Oldenburg, and the woman with the old horse, into a place of danger. The engineer and firemen both testified that in taking their engines from the depot into the round house, “coming in,” as they called it, no orders were received from the train-dispatcher and no time for running was fixed. This, perhaps, was the primary negligence. When the gate tender opened his gates, and thereby signified to persons waiting to go across, that it was safe to proceed, he himself may have been aware that a tramp engine might come down upon them from the ambush of standing cars, but persons crossing the tracks could not know it,, and when so allowed to cross would have a. right not to expect such a thing, although they might still be bound, as a matter of law, to look out for danger. But whether under the circumstances that attended Oldenburg’s attempt to go across, he exercised the care that could be reasonably expected, seems to me to have been plainly a question for the jury.

On the trial, plaintiff's counsel asked the witness Christensen, who saw the accident and saw the deceased taken out from under the engine, the question, “ How was the man injured when they took him out?” The defendant’s counsel objected to the question as incompetent, irrelevant and immaterial, and as tending to prejudice the jury, and, after the answer, moved to strike it out on the same grounds: I think the testimony was competent as a. statement in part of the accident, and because it might be material to ascertain where he received wounds in order to determine the position of the deceased when struck by the engine. The verdict does not indicate that the jury was prejudiced.

The defendant claims it was error to admit in evidence the ordinance of the city of Buffalo prohibiting the running of engines within the city at a rate of speed exceeding six miles an hour. The exception was upon the grounds that the ordinance was‘not pleaded, and was incompetent, irrelevant and immaterial.. It was offered as mere evidence on the question of negligence. Bvi*841deuce should not be pleaded. The testimony (Christensen and Davis), shows the engine was running nine or ten miles an hour. I think it cannot be inferred that the deceased was just as liable to be killed if the engine had been running at the rate of six miles as at ten miles an hour. Therefore the evidence was competent. *Briggs*v. *The N. Y. C. & H. R. R. R. Co.,*72 N. Y., 26.

The defendant claims that it was error to admit paroi evidence of the contents of defendant’s rules which prohibited the engineer and fireman from allowing persons to ride on the engine.

This evidence was called for on a cross-examination of the fireman. The plaintiffs’ counsel called out from the witness that he or the engineer, at the depot, when starting to go into the round house, allowed persons to get upon the engine to ride. It was a cross-examination of the witness to see if he was doing his duty as he understood it to be, and as to circumstances tending to exhibit the care he was exercising and the possibility of his attention being diverted from his duties on the engine. The inquiry as to the rules was collateral, and moreover, the answer did not harm the defendant for he answered that the rules prohibited taking on passengers, “ when on the road.”

The motion must be denied, with costs.