Brender v. New York, Ontario and Western Railway Co.

John M. Kellogg, P. J.: At Woodbridge crossing the railroad tracks approach the crossing through a cut, and buildings come close to the crossing [315] on either side of the highway, rendering it difficult if not impossible to see an approaching train until it is making the crossing. The plaintiff’s intestate, driving a horse down hill, came into collision with the defendant’s engine, causing his death. An automatic bell and a flagman were placed at the crossing, to notify people upon the highway of the approach of trains, and evidently the crossing was a dangerous one and required such precautions. The jury could have found that the automatic bell did not work and that no whistle, bell or signal was given, that the flagman was not on duty at the time and that the intestate, in driving down the hill to the crossing, was holding back his horse and looking in both directions. The ordinary presence of a flagman, and the use of the automatic bell, do not dispense with the necessity of caution by people traveling a highway across a railway track, but the company, by maintaining them, held out to the public an assurance of safety when the bell is not ringing and the flagman not present, and undoubtedly the same degree of care cannot be expected of a traveler upon a highway under such conditions as would otherwise be required. (McNamara v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 650; Elias v. Lehigh Valley R. R. Co., 226 id. 154.) There were several eye-witnesses to the’ accident, some of whom were sworn through an interpreter, and it is difficult to grasp just what each witness saw. The witnesses, if they saw accurately, do not seem to have the ability to make known clearly what they did see and, as to each of them, it is a fair question for the jury to interpret their evidence and to determine just what it means. The absence of the flagman, the fact that the bell did not ring and that no other warning was given, the confusion in the testimony of the eye-witnesses, are facts which make this peculiarly a case for a jury. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and a new trial granted, with costs to the appellant to abide the event.