I dissent. The undisputed facts show as a matter of law that the plaintiffs' *Page 52 intestate was guilty of contributory negligence. The accident occurred between nine and ten o'clock in the morning, with nothing to prevent his seeing or hearing the approaching train, had he looked or listened before he drove upon the railroad tracks. Care to this extent, at least, he was legally bound to take, prior to the passage of chapter 438 of the Laws of 1919, which is section 53-a of the Railroad Law. The legislature, undoubtedly having in view the great and increasing number of accidents caused by collisions between automobiles and railroad cars or trains at grade crossings, passed the act in question. Its manifest purpose was to prevent, or at least reduce, the number of such accidents by imposing a greater degree of care upon drivers of automobiles than had theretofore been imposed. It is especially directed to such drivers.
The act requires that disc signs, of the size and having the markings specified, must be furnished by the railroad company and be installed by the municipality, or in case of a state highway by the state commission of highways; and that the signs must be placed in a conspicuous position at a point or place determined by the public service commission, and three hundred feet from the crossings or as near that as possible. The top of such signs "shall not be more than five nor less than four feet above the grade of such highway, the exact height to be fixed so that the circular disc shall be most readily illuminated by the headlights of passing automobiles." Having made provisions for the placing of the disc signs, the legislature then provided what the driver of an automobile shall do when he passes the same. The language as to him is imperative: "It shall be the duty of the driver of any vehicle using such street or highway and crossing, to reduce speed to a safe limit upon passing such sign and to proceed cautiously and carefully, with the vehicle under complete control."
But it is said that this provision of the statute does *Page 53 not impose any greater degree of care on the driver of an automobile than was required prior to its enactment. I think it does. I am unable to ascribe to the legislature an intent to pass a perfectly useless act. This is precisely what it did if the reasoning adopted in the prevailing opinion be correct. A fair and reasonable construction of the language used, however, indicates that the legislature intended to impose upon the drivers of automobiles in passing such crossings a greater degree of care than was theretofore required. The statute requires that the driver, after passing the sign, shall "reduce speed to a safe limit" and then "proceed cautiously and carefully, with the vehicle under complete control." The requirement that he is to proceed with the vehicle "under complete control" indicates that there is a continuing obligation resting upon him after he passes the disc until he reaches the railroad tracks and especially so when these words are read in connection with the other words that he must "proceed cautiously and carefully." This language means, if it means anything, that he is to approach the tracks with his vehicle under such control that he can stop it instantaneously or at will before going upon the tracks. Had the intestate exercised the degree of care thus imposed, the accident would have been avoided. He was entirely familiar with the crossing. He knew as well as any one could that a train might be approaching. He knew the gates were not operated on Sunday, not only by reason of his familiarity with the crossing, but by reason of a printed sign to that effect, conspicuously posted.
The facts are undisputed that as the intestate approached the disc sign he was driving his automobile about ten miles an hour; that as he passed it he slowed down to about six or seven miles an hour. There is some proof that he looked to the west, the direction from which the train was coming, but could not see the train until he was within nineteen feet or less from the tracks, *Page 54 by reason of an embankment or other obstructions. Of course it did him no good to look if he could not see, and if he could not see then it was his duty to listen and had he done so he would have heard the freight train approaching a few feet from the crossing. But had he looked when he was nineteen feet or a little less from the tracks, and had he then had his car under complete control, the accident would have been avoided. In this connection I think the court erred in refusing to charge, at the request of defendant's counsel, that if, as he approached the crossing, at a distance of nineteen feet north of the north rail, he "had a view of one hundred and eighty feet, measured from the center of the crossing in the direction of the oncoming train, it was a duty imposed upon him by section 53-a of the Railroad Law, not merely to have his automobile under such degree of control and to proceed therein at such rate of speed that he could stop in time to avert a collision, but actually to bring his automobile to a stop if necessary to avert a collision."
Upon the facts as assumed in this request, instead of complying with the statute in this respect by proceeding cautiously and carefully, and having his car under complete control, he heedlessly and carelessly, without looking when he could have seen, or listening when he could have heard the approaching train, drove upon the tracks. The fact that the automobile was struck when it was only partially over the tracks justifies but one inference, viz., that the train was almost upon him when he attempted to cross. (Frees v. Chicago, B. Q.R. Co.,263 U.S. 1.)
For the reasons given I vote to affirm the judgment.
HOGAN, CARDOZO, POUND and ANDREWS, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion and HISCOCK, Ch. J., concurs.
Judgment reversed, etc. *Page 55