#### Frank Allenza, as Administrator of the Goods, Chattels and Credits of Fillippa Allenza, Deceased, Plaintiff, *v.*Erie Railroad Company, Defendant.

(Supreme Court, Livingston Trial Term,

December, 1912.)

Negligence — contributory — exercise of care for safety — railroads.

While an intending passenger, proceeding toward a railroad station over a course commonly used by the patrons of the company with its full knowledge and without its protest, must exercise care for her safety, she should not be held to the same exercise of care that would be required of a person casually going that way but without any lawful errand at the station.

*660The long, open and 710101-10118 user of said course, in the circumstances, created a situation where it might be implied that the railway company had practically invited its passengers to take said course on the way to the station.

Where plaintiff’s intestate, an intending passenger, on reaching the .end of a sidewalk on the main street of a village, started diagonally across an open space belonging to defendant toward its railroad station, and, while crossing a switch which ran nearly parallel to the .sidewalk, was hit and killed by one of defendant’s freight cars which had been “ kicked ” into the switch from the main track and was going by its own momentum; and the evidence was ample to justify a finding that the course taken by decedent had been open and notorious for many years and that with the knowledge of defendant’s local station agents passengers had approached the station that way without objection or protest from defendant, decedent was not a trespasser.

The defendant was bound to exercise reasonable care in the management of trains and cars at the switch, and whether it did so in relation to the car which killed decedent was a question for the jury.

Whether decedent looked as she was about to cross the switch and whether or not from the position and appearance of the car, in the absence of any signal, she would be able to tell whether the car was standing still, o.r was going from or coming toward her, was, in the circumstances, for the jury to say.

Motion .by defendant for a new trial on the minutes, plaintiff having recovered a verdict.

Mclnerney & Rechtold, for plaintiff.

Robbins, Brown & Greene (Jesse S. Phillips, of counsel), for defendant.

Clark, J.

On the 14th day of November, 1910, plaintiff’s intestate started for defendant’s station at Livonia, intending to take the next train for Avon. She proceeded westerly on the south side of Main street in Livonia until she got to the northwest comer of a brick building standing just east of defendant’s lands, when she turned southerly and proceeded down a cement sidewalk on the west side of this brick block some forty feet to the end of the walk and then started diagonally across an open space belonging *661to defendant, towards its station, and while crossing a switch, which i*an neai’ly parallel to this sidewalk referred to, and some seven feet west of it, she was hit and killed by one of defendant’s freight cars, which had been “ kicked ” into this switch from the main track at the northerly end of the switch, and was proceeding by its own momentum southerly on the switch to a point where it was to be loaded with produce.

Defendant’s main track at Livonia passes through the village in a pz*actically north and south direction, the main enti’ance to the station facing west, it being on the east side of the main track and the switch where this lady was killed running on the east side of the station building. As plaintiff’s intestate pz-oceeded westerly on the south side of Main street, toward the station, when she came to the corner of the brick block above referred to, she could have proceeded straight on westerly on the south side of Main street until she came to defendant’s main track, and then turned sharply to the left and proceeded southerly parallel to the main track on a cinder path to the station, but that course would have been considerably longer than the one she adopted.

There was ample evidence from which the jury could have found that the course followéd by deceased was the couz’se openly adopted by a very large proportion of defendant’s patrons at Livonia in going between Main street and its station, and that this custom of intending passengers, or passengers leaving trains at the station, to pass between the Main street and the station over the route adopted by deceased had been open and notorious for many years, and with the full knowledge of defendant’s local station agents, and passengers had taken that course without any objection or protest from defendant or its agents or seiwants.

Under the circumstances, this lady being an intending passenger had a lawful right to go to the station of defendant, when she followed the couz-se to reach the station that she had taken on former occasions, and which was the usual course adopted by passengers for many years going to and from the station from Main street, with the full knowledge of defendant’s agents that this space was being so *662used by its patrons, without its raising a protest or objection. She was not a trespasser, but the long, open and notorious use of this course by the traveling public, v/ith defendant’s full knowledge and acquiescence, created a situation where it might be implied that defendant had practically invited its passengers to take that course. Under the circumstances it owed a greater duty to its intending passengers taking that course than the mere duty not to wantonly run them down, but it owed the duty of reasonable care in the operation of its cars at that point.

The case of Keller v. Erie R. Co., 183 N. Y. 67, relied on by defendant, is hardly controlling here, for the reason that in that case plaintiff was not an intending passenger of defendant, but was merely walking along the tracks of another railroad, as was a common custom, and was hit by one of defendant’s trains at the intersection of the two roads. He had no business with the defendant, and did not intend to have any, and of course when he traveled on defendant’s property he was a trespasser, and took his chances. But in the case at bar, deceased being an intending passenger, and following a course which she had taken before to reach its station, a course which was commonly used by very many of its patrons at Livonia, and with the knowledge of its officials, rendered her relations to the company somewhat different from those of plaintiff’s intestate in the Keller case, and I think the cases of Barry v. New York C. & H. R. R. R. Co., 92 N. Y. 289; Byrne v. New York C. & H. R. R. R. Co., 104 id. 363, and De Boer v. Brooklyn Wharf Co., 51 App. Div. 289, are more in line with the facts in this case.

Of course defendant had a right to use this switch for its business, and it was not unlawful for it to “ kick ” this freight car in on the switch, if such work was properly done; but when the public was permitted to use its premises for many years, where deceased undertook to cross its station, and in an open and notorious manner, without protest, and with knowledge that it was being so used, it was bound to exercise at least reasonable care in the management of its trains and cars at that point, so that intending passen*663gers about to proceed over this commonly used territory to reach its station would not be subjected to unnecessary risks and dangers, and whether such reasonable care was exercised at this time was clearly for the jury.

It is strongly urged in behalf of defendant that, even though plaintiff’s intestate was not a trespasser, there was hot sufficient proof of defendant’s negligence to warrant submitting that question to the jury. There was evidence to the effect that the car which killed this lady had been placed on this switch at its intersection with the main track at a point several hundred feet north of Main street, and that it was being “ kicked ” into this switch, which means that the locomotive pushing this car had attained considerable speed and then had been disconnected, leaving the car to proceed at its own momentum in a southerly direction on this east switch; that no person had been placed at the southerly end of this car, and in a position where such person could see people about to cross the switch, to warn them of approaching danger, that the car was proceeding rapidly, one witness putting it as high as sixteen miles an hour, and that no bell or whistle or warning of any kind was given. Under the circumstances, this car being *“*kicked ” on this switch in a village before it would reach its destination having to pass across the main street of the village, and in a territory where defendant, through its local agents knew perfectly well that intending passengers were likely to travel in going to its station, as had been the custom, for many years, it was clearly for the jury to say whether or not under the circumstances the defendant exercised reasonable care in the operation of its car.

It is also contended with much earnestness, that plaintiff’s intestate was not shown to be free from contributory negligence, and that seems to me to be the most troublesome question in the case. There was evidence of one witness to the effect that when intestate reached the northwest corner of the brick block above referred to, as she proceeded on the southerly side of" Main street, which point is only a few feet from the switch in question, she turned her head toward the north, which would bring her line of vision in *664the direction from which this car subsequently came, that she then turned sharply and proceeded southerly on the cement sidewalk, which stands on defendant’s land just west of the brick buildings which face defendant’s property on the west and about seven feet east of the switch in question, and that she proceeded southerly to the end of this walk, a distance of some forty odd feet. Another witness, a daughter of intestate, who had started for the station over the same course, but a little behind her mother, arriving at the northwest corner of the brick block on the south side of Main street just as her mother had reached the southerly end of this sidewalk and before she stepped off the walk to proceed across this little open space to the station, testified that she saw her mother at that point and saw her turn her head toward the" north, and that then she started across toward the depot. She had only gone from seven to ten feet before she reached the switch where she was run down by this car.

I am not unmindful of the rule that when persons look for the approach of a train they must look intelligently, and that if -a party looked when a train was in sight, and testified that he looked but did not see the train, such a statement would be incredible as a matter of law; but it must be borne in mind that in this case the lady was killed and is not here to tell precisely what she did in the matter of exercising care for her own safety, and under these circumstances the rule is somewhat relaxed with reference to establishing freedom from contributory negligence, and not as much proof or as strong proof is required to establish that proposition as would be necessary if the party was living to tell her own story. This lady was an intending passenger and was proceeding toward defendant’s station over a course commonly used by its patrons, and with its full knowledge and without its protest, and she should not be held to the same strict exercise of care that would be re-, quired of a person casually going that way but without any lawful errand at the station. Terry v. Jewett, 78 N. Y. 338; Cranch v. Brooklyn Heights R. R. Co., 186 id. 310.

All this lady was obliged to do was to exercise that degree *665of care for her own safety which would be exercised by a reasonably prudent person under similar circumstances. If she looked to the north, as the witness Densmore says she did, when she left Main street at the comer of the brick block, and proceeded southerly up the cement sidewalk west of the building and just east of the switch, and if when she arrived at the southerly end of this sidewalk, before she started across the little open space to reach the station, she again turned and looked to the north as her daughter testified she did, who can say that she failed to exercise reasonable care under the circumstances ? It should be remembered that the car approaching on this switch from the north was not being driven by a locomotive, where it would be expected that the noise would be loud and steam or smoke would be escaping, which could be plainly seen, but it was proceeding up the switch in a southerly direction by its own momentum, with no person on the front end of the car to warn people who might be about to cress the track, and it might well he that if this lady looked, as these witnesses testified, even though she was able to see this car, which must have been a considerable distance north of Main street when she looked, she would be unable to tell whether or not the car was in motion, for any person who has ever observed a box car on a siding with no locomotive attached will understand that unless the car is very near it is difficult to tell whether or not it is in motion, when a person looks at it from a point on or very near the track on which the car is located. A box car that is being “ kicked ” on a switch, in the manner described by the witnesses in this ease, proceeds along very stealthily, and it might well be that a person at a distance of from one to two hundred feet from such a car would be unable by any ordinary obseiwation to discover whether the car was in motion, and I think under the circumstances that it was for the jury to say whether this lady looked as she was about to cross the switch, and whether or not from the position and appearance of the car, in the absence of any signal, she would be able to tell whether the car was standing still or was going from her or coming toward her.

It impresses me that the questions of defendant’s negli*666gonce and intestate’s freedom from negligence were for the jury, and that the findings on those questions were not against the weight of evidence, even though defendant may have had the larger number of witnesses.

The motion for a new trial must be denied, with costs.

Motion denied, with costs.