#### KELSEY v. STATEN ISLAND RAPID TRANSIT R. CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Railroad Companies—Accident at Crossing—Contributory Negligence.

In an action for an Injury at a railroad crossing where the view of the track was obstructed, except within a short distance, it appeared that plaintiff was familiar with the crossing, and its dangerous character, and knew that a train was due about t6e time of the accident. Plaintiff testified that, when within a few feet of the track, he stopped, and looked and listened, but did not see or hear anything. *Held,*that the question of contributory negligence should have been submitted to the jury.

2. Same—Degree oe Care.

It is not, as a matter of law, negligence for person crossing a railroad track at a place where the track cannot be seen, except when one is only a few feet distant, to attempt to drive across without first walking on the track, and looking for a train.

Appeal from circuit court, Richmond county.

Action by Abram R. Kelsey against the Staten Island Rapid Transit Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Adelbert E. Carroll, for appellant.

Tracy, Boardman & Platt, for respondent.

BROWN, P. J.

This action was to recover for injuries received in a collision with a train on defendant’s road at a highway' crossing. There was evidence which would have permitted the jury to have *975found negligence upon the part of the defendant. The complaint was dismissed upon the ground that it also showed contributory negligence upon the plaintiff’s part. The law required of the plaintiff that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. Parsons v. Railroad Co., 113 N. Y. 355, 21 N. E. 145. And it is only when it clearly appears from the evidence that the party’s own act or neglect contributed to his injury that the case can be withdrawn from the jury. It is not enough to show that it was possible for the injured party to discover the train, but the question always is whether the care exercised was that which an ordinarily prudent and intelligent person would exercise under similar conditions. I think the case should have been submitted to the jury. The accident occurred on September 12th, between 7 and 8 o’clock in the morning. The plaintiff was driving a milk wagon having a wooden top, with sliding side doors, which were open at the time of the accident. He was familiar with the crossing, knew its dangerous character, and knew that a train was due about the time of the accident. He was going north towards the track, and the colliding train was approaching from the east. For 1,320 feet east of the crossing the track ran through a cut 15 feet in depth at the crossing, and running out until it reached the level ground. The street- ran through a cut for 300 feet south of the crossing, and for that distance a view of the track was obstructed to a person approaching from the south until within 30 feet of the track, when he could see 350 feet to the east. The plaintiff testified, as to the accident, as follows:

“When I was up the road where we could see, I looked to see if I could see the train. I could not see it or hear it. I listened, and my horse walked slowly down the hill. I listened all the way down the hill. I did not hear it whistle or ring a bell.' When I got down within a few feet of the track, I listened with my head out on the side of the wagon. I did not hear any sound of a train. Then I started my horse right on the track. I was struck by the train. Until the horse’s head was on the crossing, the obstruction was such that no one could see an approaching locomotive at all.”

The seat occupied by the plaintiff was in the rear of the wagon, back of the doors, and the horse was on a walk. It is apparent from this evidence that when the plaintiff reached a point within 30 feet of the track, where from his seat he could look up the track to the east, his horse’s head was within a few feet of the rails. The horse crossed the track, and the engine collided with the wagon. It is entirely credible, therefore, that plaintiff did not see the train when he listened with his head out of the side of the wagon at the point 30 feet from the track, and that, while his horse walked the distance of 30 feet, there was time for the train to reach the crossing. It cannot be said, as a question of law, that plaintiff should have stopped his horse, or gotten out of his wagon, and gone upon the track and looked, before attempting to cross. While the vigilance of a traveler must be proportioned to the known danger, it is •also limited by usual and ordinary signals and evidence of danger Weber v. Railroad Co., 58 N. Y. 454-456. The defendant had ere*976ated a dangerous crossing, and then omitted all notice of the approach of trains. The plaintiff had listened for the usual signals while he passed slowly over a' distance of 300 feet, and heard none. He looked at the first point where he had a view of the track, and saw no danger. It was possible for him to have discerned the train if he had gotten out of the wagon and gone upon the track, but whether it was negligent for him to omit that precaution was a question for the jury, not for the court. Whether his conduct was that of an ordinary prudent and cautious man was a fact to be determined by inference drawn from the evidence, and the question was for the jury. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.