The action was brought to recover damages for the negligent killing of the plaintiff’s intestate, which was caused by the collision *611of a horse car driven by the intestate with a train of cars of the defendant at the crossing of the street railroad and the defendant’s road, at Eleventh avenue and Thirty-fourth street, in the city of New York. The track of the defendant’s road was laid down the center of Eleventh avenue. The Thirty-fourth Street Railroad Company extended along Thirty-fourth street and across Eleventh avenue. The plaintiff’s intestate was driving a horse car on that road and was approaching the defendant’s track at Eleventh avenue. A train of freight cars of the defendant stood on the track above Thirty-fourth street and nearly at Thirty-fifth street. The rear of the train was near Thirty-fourth street, and the engine was at Thirty-fifth street. As the street car, coming from Twelfth avenue towards Eleventh avenue, approached the crossing a flagman signaled to the driver to come ahead. At that time the car of the defendant’s train which was nearest Thirty-fourth street was twenty or twenty-five feet north of the crossing, and the horses of the street car were at or near the crossing on the west side of the avenue, and were in the neighborhood of twenty or thirty feet from the defendant’s track. They were going at a slow trot. The train of the defendant commenced to move just about the time that the flagman gave the signal to come ahead, and while the horses attached to the car were twenty or thirty feet from the track. The horse car did not belong to the Thirty-fourth Street Railroad Company, but to the Metropolitan Street Railroad Company, and the driver was in the employ of the latter company. What connection that company had with the Thirty-fourth Street Railroad Company does not appear in' the case.
• Upon the trial the defendant offered in evidence a contract between the Thirty-fourth Street Railroad Company and the defendant providing for the crossing of the defendant’s track at Thirty-fourth street. It was stated by the counsel for the defendant, at the time of the making of the offer, that it was a contract under which this crossing existed at the time of the accident. The contract was offered solely as bearing upon the question of negligence of the defendant’s employees in starting the train at the time and under the circumstances that it was started. The contract was objected to; the objection was sustained, and the defendant excepted. This ruling of the court, we think, was erroneous.
*612The claim of the plaintiff was, that the defendant’s employees were guilty of negligence in starting the train at the time when the street car was slowly approaching the track of the defendant, and was at a distance of twenty-five or thirty feet from that track. At that time the horses of the street car were under absolute control; the car was going at a slow pace, and might have been stopped in a very short distance. These facts were apparent to every one. That, was the condition of affairs at the time the flagman made the signal,, which is claimed by plaintiff to have been a signal to the driver of the car to come on. The train was then standing still, and there was no reason to believe that it was about to start. Under those circumstances it was clearly not contributory negligence for the driver of the street car, the plaintiff’s intestate, to continue approaching the track. But was it negligence for the engineer to start his train at that time, when the driver of the street car was slowly approaching his track, and at a distance of about thirty feet from it ? The answer to that question depends upon the manner of doing business at that place, and whether the train had still the right of way at the crossing, or whether the persons upon it had any reason to believe that that right of way would be interfered with, or whether, as matters then stood, the duty was upon them to avoid the street car. If, at the time of starting this train, the engineer of the train, or the person who gave him the signal to start, knew or ought to have known that the driver of the street car was approaching the track with the intention of crossing it, the train should not have' been started, and if it was, the defendant was guilty of negligence. But if, when the train was started, the defendant’s servants might have supposed that the driver of the "street car had not determined to cross the track, or if, as the crossing was managed, they had reason to believe that the driver of the street car was likely to stop and not attempt to cross the track, they were clearly not guilty of negligence as matter of law in starting the train. Therefore, it was competent for the defendant to show what was the manner of doing business at that crossing, and whether, under ordinary circumstances, by the 'application of the rules which had been established, the street "car was likely to stop before it attempted to take the crossing.
The contract which is offered in evidence, and printed as an *613exhibit, is made between the New York Central and Hudson River Railroad Company of the first part and the Thirty-fourth Street Railroad Company of the second part, and was stated to be the agreement pursuant to which the crossing existed. From that statement it must be inferred that the contract was made pursuant to the- statute (Laws cf 1890, chap. 565, § 12) for the intersection of one of these railroads by the other, for that statute applies to street as well as to steam railroads. (Port Richmond R. Co. v. Staten Island R. Co., 71 Hun, 179.) It provides that each car of the street railroad company, on approaching said crossing, shall come to a full stop at least ten feet, and not more than thirty feet, from the nearest track of the party of the first part, and the conductor of the car shall go forward to the tracks of the party of the first part (the defendant) and look in both directions for approaching trains, and in no case shall the car be started forward until its conductor has looked in both directions and ascertained that no approaching train on the tracks of the defendant .is within a distance from said crossing making it unsafe for the car to proceed ; and if any approaching train of the defendant is within a distance of said crossing making it unsafe for such car to proceed, no car of the party of the second part (the street railroad company) shall pass, or attempt to pass, over the crossing until such approaching train has passed the crossing- or come to a full stop before reaching it. This contract between the defendant and the Thirty-fourth Street road was the one by which the approach of the defendant’s cars to the crossing was controlled. Within the terms of that contract, it is quite clear that the employees of the defendant in charge of the train had a right to assume that at some point between ten and thirty feet from ■ the crossing the horse car would come to a stop ; and that they had a right to manage the train in reliance upon that arrangement and understanding.
It is noticed that, although the train began to move when the street car was approaching the crossing, yet, the car being then thirty feet from the track, the duty of the driver to stop it still -existed. Those in charge of the train had the right to suppose that the driver of the street car would stop at least when he got within ten feet of the crossing, and there was no duty upon them to hold the train unless they knew, or had reason to know, that the driver *614was not intending to stop. But they could not know that until the driver had arrived within ten feet of the crossing and had not stopped. Then, of course, it would have been too late to stop the train; so that until it had reached a point where the collision could not have been prevented, there was no reason to suppose that the driver of the street car would persist in crossing and make it necessary for the engineer to try to prevent it. It is very clear that, if these facts had appeared, it would have been, to say the least, a question for the jury whether any employee of the defendant was guilty of negligence in starting the train at a time when he had reason to believe, or might have believed, that the street car was not intending to attempt to cross.
But it is said that the Metropolitan Street Railway Company was no party to this contract, and for this reason it is not admissible against one of its employees. That fact, however, is not a matter of importance as it seems to me. The question is not whether the driver of the Metropolitan Company violated any rule laid down in this contract, but whether the defendant’s engineer, using the crossing in accordance with this contract, had a right to rely upon it in the absence of any information or reason to believe that the street car which was approaching the crossing did not belong to the company with which the contract was made. The crossing existed by virtue of this contract. So much was made to appear in the offer, and it must necessarily be assumed from it that the rights of the defendant at least were controlled and fixed by this agreement. One of those rights was to approach the crossing with a train,, although a street car may have been approaching, in reliance U[)on the fact that the car thus approaching would stop within ten feet of the crossing, and to regulate the approach of its trains upon the theory that such stoppage would be made. Although, therefore, the engineer of the defendant saw the street car approaching, he had a right to assume that that street car would stop within ten feet of the crossing; and until he ascertained that the car did not stop, he was not called upon to take any steps to 'check the motion of his train. When the servants of defendant in charge of this train saw a horse car approaching, knowing, as we must assume they did, that by the rules which regulated the crossing, the horse car would stop within ten feet, they had a right to rely upon that stoppage unless *615they knew that this horse car was not one which was controlled by those rules. It seems to us, therefore, upon a careful consideration of this case, that the evidence excluded was proper for the consideration of the jury upon the question of the negligence of the defendant’s employees, and for that reason the ruling of the court was erroneous.
The judgment and order must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.
Yak Brukt, P. J., and McLaughlik, J., concurred; Barrett and Ikgraham, JJ., dissented.