James O'Bierne, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent

James O’Bierne, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent. Negligence — a person drilling upon a highway injured by collision with a single detached, car — when the question cj contributory negligence is for the jury.' A person driving south along a public highway, upon both sides of which were the freight yards of a railroad, and which was crossed by four tracks, running from northwest to southeast, looked south, east and west before attempting to cross the tracks, and again (after passing over one or more of the tracks in safety) when within but thirty feet of the next track. When his horses reached this track he heard a crash to the east, and looking up saw a single detached car approaching rapidly and about a hundred feet distant, which struck his wagon before he was able to cross the track. There was no brakeman on the car or flagman at the crossing. In an action brought by him against the railroad company to recover damages for personal injuries thus sustained, it was Held, that the question whether the plaintiff was guilty of contributory negligence in failing to keep looking to the east and ivest while passing over the thirty feet intermediate the point where he last looked and the track upon which the accident occurred, was for the jury, and that it was error for the court to nonsuit the plaintiff upon that ground. Appeal by the plaintiff, James O’Bierne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of October, 1898, upon the dismissal of the complaint^by direction of the court after a trial at the New York Trial Term. The plaintiff was injured on April 4, 1894, on Eleventh avenue in the city of New York. He was driving a wagon and turned south into Eleventh avenue from Thirty-third street. Between Thirty-second and Thirty-third streets four tracks of the defendant cross Eleventh avenue, running from northwest to southeast. On both sides of the avenue are the defendant’s freight yards. The plaintiff looked south, east and west when he turned into the avenue, and again when but 30 feet distant from the track where the accident occurred, but no moving car was visible. When the horses were upon the track he heard a crash to the east, and looking up saw a single, detached car approaching rapidly and about 100 feet distant. He shouted to the horses and attempted to get across, but the car struck the rear wheel of the' wagon and the plaintiff was thrown off and injured. There was no brakeman on the car or flagman at the crossing. L. E. Warren, for the appellant. Daniel W. Tears, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The plaintiff was nonsuited upon the ground that he should have kept looking to the east and west while passing over the thirty feet upon his side of the track where the accident occurred. No point was made as to the defendant’s negligence. A prima facie case on that head was clearly made out. (D., L. & W. R. R. Co. v. Converse, 139 U. S. 469.) We think that the question of contributory negligence was also for the jury. It is undoubtedly the duty of one who attempts to cross the track of a railroad, at a point where rapidly moving trains are ordinarily to be expected, to keep upon the lookout therefor. There is no absolute rule, however, requiring the traveler to use his eyes in a particular manner at a particular instant of time. (Oldenburg v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 414.) The surrounding circumstances are always to be considered upon the ques: tian whether proper prudence was observed. It was said in Palmer v. N. Y. C. & H. R. R. R. Co. (112 N. Y. 234) that the plaintiff “ could not rush heedlessly on to danger and throw" the result upon the defendant, but the degree of care required of a traveler is increased or diminished by the greater or less probability, suggested by the circumstances about him, that without it an injury will happen.” Applying this rule to the case at bar, we think it was for the jury to say whether the plaintiff was negligent. The locality was a public highway, which the defendant was using for purposes other than ordinary traffic. The plaintiff could have had no reason to anticipate the sudden appearance of a rapidly moving train or car. He testified that as he approached the tracks he looked “ down and * * * up and over ” them. No engine or car then appeared to be anywhere in motion. In fact, all was silent in the neighborhood. It was quite early in the morning. There was no signal or flagman. The plaintiff passed over one or more of the tracks in safety, and without incident of any kind. He then found himself within but thirty feet of the remaining track. Here again he looked to the east and west, and discovered no element of danger. Apparently there was none. It was while he was passing over this remaining thirty feet that the defendant executed the maneuver whereby a single car was put suddenly into rapid motion without a brakeman to control it or warning to passengers upon the thoroughfare. The jury might properly have found that the plaintiff could not have anticipated this sudden danger, and that he was justified under the conditions which preceded it in supposing that he could, in a few seconds, pass over the remaining track quite as safely as he had passed over the others. The nonsuit was erroneous, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.