#### Mary Byrne, an infant, by Guardian, Resp’t, *v.*New York Central and Hudson River R. R. Co., Appl’t.1

*(Court of Appeals,*

*Filed February*8, 1887.)

1. Negligence — Railroad — Crossings not public highways.

On the trial for an action for damages caused by a car of the defendant being backed against the plaintiff and thus injuring her, there was evidence tending to show that there was an alley at the place where the plaintiff was injured which was extensively and notoriously used by the public, without objection. *Held,*it was for the jury to determine to what extent and in what manner the alley was used by the public, and the amount of care defendant was required to exercise.

2. Same — What care required, a question for the jury.

The defendant was backing its train towards the crossing and it was bound to use reasonable and ordinary care so as not to endanger those who might be lawfully upon its tracks at that crossing. What care and . precautions if any, besides ringing the bell, it should have taken upon a train thus backing, were properly left for the jury to determine.

8.'Same — Ringing bell, etc. — Reasonable notice.

While not absolutely bound to ring a bell or blow a whistle, yet. it was bound to give some notice reasonable and proper under the circumstances in approaching the crossing.

Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer county circuit, entered on a verdict in favor of the plaintiff in an action to recover damages for injuries inflicted on plaintiff by the defendant at a railroad crossing.

The facts are sufficiently stated in the opinion.

*Esek*Cowen, for appl’t; N. *A.*Parmenter, for resp’t.

1

 Affirming 36 Hun., 647*mem.*

Earl, J.

There was some controvei’sy upon the trial of this action as to whether or not the place where the plaintiff was injured was a traveled public highway, and the trial judge submitted the case to the jury upon the assumption that it was not. *723There was, however, evidence tending to show that there was an alley at the place where the plaintiff was injured, which was extensively and notoriously used by the public without any objection on the part of the defendant, or any question as to the right of all persons so to use it; and the judge charged the jury that it was a question for them to determine to what extent and in what manner the alley was used by the public; that if they came to the conclusion that the right of passage was there exercised by the public, as claimed by the plaintiff, notoriously and constantly previous to and at the time of the accident, then they were required to determine the amount of care and prudence which the defendant was required to exercise in approaching and crossing the alley; and that then the defendant, while not absolutely bound to ring a bell or blow a whistle, yet was bound to give some notice and warning, reasonable and proper under the circumstances, in approaching the crossing, and that it was for them to determine whether such notice and warning was given. The law as thus laid down was fully warranted by the case of *Barry*v. *New York Cent. & H. R. Co.,*92 N. Y., 289. In that case it was held that where the public, for a series of years, had been in the habit of crossing the railroad, the acquiescence of the defendant in the public use amounted to a license- or permission to all persons to cross at'that point, and imposed the duty upon it, as to all persons so crossing, to exercise reasonable care in the movement of its trains so as to protect them from injury. We think that case, notwithstanding the criticism of the learned counsel for the defendant in this case, is in entire harmony with the previous eases of *Nicholson*v. *Erie R. Co.,*41 N. Y., 525, and *Sutton*v. *New York Cent. & H. R. Co.,*66 N. Y., 243. In the three cases the distinction between active negligence causing an injury, and mere passive negligence, was clearly pointed out. In the *Barry*case the railroad company carelessly backed its cars against the plaintiff’s intestate, and thus caused his death. In the other two cases there was no active negligence, but simply an omission properly to fasten the cars which without any human agency moved and thus ran against the persons injured.

The recent case of *Larmore*v. *Crown Point Iron Co.,*101 N. Y., 391, 1 N. Y. St. Rep., 43, was similar. There it was decided that a person who went upon the land of another, without invitation, to secure employment from the owner of the land, was not entitled to indemnity from such an owner for an injury received from a defective machine on the premises not obviously dangerous which he passed during the course of his journey ¿ and that, although it might be shown that the owner could have ascertained the defect by the exercise of reasonable care, yet that he owed no legal duty to a stranger so coming upon his premises which required him to keep the machinery in repair. *724That was plainly a case of mere passive negligence, — an omission to keep a machine in repair which was not obviously dangerous. Here the ground of the defendant’s liability is that its agents, engaged actively in its service, carelessly backed a car against the plaintiff, and thus injured her. If she had been injured, from a defect of the car or engine not obviously dangerous, the case would have been like the *Larmore Case.*If the car had moved upon her without any human agency, simply because it had not been sufficiently secured or fastened, then it would have been like the *Cases of Nicholson*and *Sutton.*There are points of resemblance and points of difference between the *Barry Case-*and the other cases. Taking the points of resemblance, a plausible argument may be made to show that the cases conflict. But. taking the points of difference, then, while the distinction between the *Barry Case*and the other cases is not so plain as a traveled highway, it is sufficient to require the application of different principles, and the reaching of a different result.

The facts of this case, so far as they relate to the accident-are substantially the same as those proved upon the trial which, was under review in 83 N. Y., 620, when the ease first came to this court. There we held that there was evidence sufficient for the consideration of the jury both in reference to the plaintiff’s contributory negligence, and the negligence on the part of the defendant; and we see no reason to reconsider the conclusion in reference to those matters then reached. It is quite true that the evidence to establish freedom from negligence on the part of the plaintiff is very weak, and liable to much criticism, and yet we are constrained to think, as we did before, that it was proper for submission to the jury. .

There was evidence tending to show that no bell was rung or whistle blown upon the engine attached tothe train in approaching this crossing, and the court charged the jury that the defendant was not absolutely bound to ring a bell or to blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under the circumstances; that it was bound to give, by bell, whistle, or otherwise, such reasonable notice as the jury should find the circumstances required. The charge, as thus made, was excepted to on the part of the defendant; and its counsel requested the court to charge that, if the bell was rung as testified to by defendant’s witnesses, that was a sufficient warning of the approach of the train, and that the defendant was not bound to give any other notice or warning. The judge refused so to charge, and the defendant’s counsel excepted. In these rulings there was. no error. The defendant was backing its train towards this crossing, which was exclusively and notoriously used by the public, and it was bound to use reasonable and ordinary care so as not to endanger those who might be *725lawfully upon its track at that crossing. And what care and precautions, if any, besides ringing the bell, it should have taken upon a train thus backing, were properly left for the jury to determine ; and so it was held in the *Barry Case.*There, as here, there was a dispute as to whether the bell was rung or the whistle blown as a warning for the approach of the train. There the court charged the jury that, in running its cars, the defendant was bound to give such notice and warning as in their judgment would be regarded as reasonable and proper, .and calculated fairly to protect the lives of persons using the crossing; that they need to determine whether, in backing the train, it observed that care and caution which was called for under the circumstances; and that it had a right to back the train, but, under the circumstances of the case, the question is whether it had the right to back it without giving warning in some way to the intestate. The defendant’s counsel then requested the judge to charge the jury, that if the bell was rung, the defendant was not bound to give any other warning; and in reply to the request the judge said that he left it for the jury to determine whether, under the circumstances, the ringing of the bell would have been such a warning as was requisite. This court held that there was no error in the charge as made, or the refusal to charge. Judge ANDREWS in his opinion said: “We think it cannot be held, as matter of law, under the circumstances of this case, that the ringing of the bell fulfilled the whole duty resting upon the defendant.”

We find no error in the record, and the judgment should be .affirmed, with costs.

All concur.