Elias v. . Lehigh Valley R.R. Co.

Andrews, J. About noon on January 22, 1914, the plaintiff was driving two horses attached to an empty .bobsleigh north on a highway in the town of Rush, *156 Monroe county, which is crossed by the defendant’s' tracks at a slight angle. As he approached, his view towards the west was cut off by buildings until he substantially reached the railroad right of way. Toward the east there was less difficulty. Five hundred feet from the intersection he could see along the tracks to a point beyond a local passenger station some seven hundred feet distant. Again when eighty or ninety feet from the rails, he could see in the same direction some three hundred and fifty feet and this distance rapidly extends as the tracks are neared. At this crossing for years the defendant had stationed a flagman. His shanty was north of the tracks and west of the highway. The plaintiff lived nearby and was familiar with the situation. He knew of the flagman. Indeed that very day as he drove back and forth, he had seen him performing his duties. Under these circumstances what did he do? At the five-hundred-foot point he looked to the east and saw nothing. He then drove on slowly, listening. The day was bright and clear and he might hope to hear the noise of an approaching train. He looked again at the eighty-foot point and again heard and saw nothing. No sign caine from the flagman although the door and a window of his shanty faced the east and he apparently had an unobstructed view in that direction. The plaintiff may have naturally assumed, also, that at least many of the trains from the east would stop at the station. Reasonably he feared greater danger from the west. From that direction all trains would come at speed. In that direction, too, the flagman’s view was interrupted by a cut. The plaintiff himself could see nothing until close to the rails. He was not walking, but had his horses to control. Not unnaturally his attention was directed to that side and to the flagman’s shanty. He did not look again to the east until he was on the tracks a moment before the accident. He was struck by a light engine, used for the inspection of the road, coming from the east at *157 .forty-five miles an hour. It made, we may fairly assume, less noise than an ordinary train. We may also assume it did not ran on any schedule time. Certainly it did not. stop at the station. The flagman gave no warning although he seems to have been in his shanty. Under these circumstances it was error for the Appellate Division to hold that the plaintiff was guilty of contributory negligence as a matter of law. He did listen. He did look, although not perhaps at the precise point where later cool investigation shows looking would have been most effective. In the situation presented to us, it was. for the jury to say whether he should have looked once more. In reaching this conclusion we lay some stress upon the absence of the flagman — not that this absence would entitle the plaintiff to discard all caution, but as bearing upon the question as to whether the caution he did use was adequate. This, it is said, we may not do. We think it, however, an element entitled to consideration. It is doubtful whether McGrath v. N. Y. C. & H. R. R. R. Co. (59 N. Y. 468) was ever intended to have as broad an application as is now claimed for it by the respondent. (Wilbur v. Del., L. & W. R. R. Co., 85 Hun, 158.) Had it, however, it would now be overruled by later decisions of this court. (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Dolan v. D. & H. C. Co., 71 N. Y. 285; Pakalinsky v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424, 428; McNamara v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 650; Avery v. N. Y., O. & W. R. Co., 205 N. Y. 502, 506.) Where, although not required so to do, a railroad has stationed flagmen at a crossing, that fact, as to one who knows it and has come to rely upon it, may be considered by a jury in deciding whether under all the circumstances he has used reasonable care for his own protection. The absence of such a flagman may well affect the vigilance they would otherwise have required of an approaching traveler. *158 As to the defendant’s negligence, it is true that no flagman need have been stationed at this point. Having voluntarily placed one there the defendant could later withdraw him. Its duty was done if it gave reasonable warning of the passing of its trains — and often the bell and the whistle would as a matter of law be sufficient. Not always, however. Where the practice of guarding the crossing was not abandoned; where it was neglected by him whose duty it was to warn travelers, his unexplained failure might be found to be negligent towards those who knew of his habitual presence and had become accustomed to his warnings. The danger is obvious. It is like in kind to that caused by raised and untended gates. To some extent it is an assurance that the way is safe. That the railroads recognize the danger is seen by the familiar sign at country crossings giving notice that the flagman is absent after 6 p. m. The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs to the appellant in this court and in the Appellate Division. His cock, Ch. J., Cardozo, Pound and Crane, JJ., concur; Collin and Cuddeback, JJ., dissent. Judgment reversed, etc.