Upon the undisputed facts of this case vre are unable to see upon what theory any negligence can be imputed to the defendant which can be fairly said to have been the proximate cause of the accident to which the death of" the plaintiff’s intestate is attributed. It is true that the crossing gates were raised ; but this circumstance was only an indication that no danger was to be apprehended from passing trains. It w;as not an assurance that drivers of restive horses might pass a stationary engine in safety; for the peril to be encountered in the effort to accomplish that feat was one which was apparent to everybody who attempted it. (Scaggs v. President, etc., 145 N. Y. 201.)
*38Neither can it be said that the projection of the defendant’s locomotive into the highway was in any degree accountable for the accident. For it is conceded that there was ample room left for the horse to pass, and that he would have passed in safety and without experiencing any fright whatever but for the noise occasioned by the sudden escape of steam. There is some little confusion in the evidence as to the particular part of the engine from which this steam escaped, the plaintiff testifying that she supposed it came out of the smokestack. But aside from her testimony the evidence on the part of both the plaintiff and the defendant establishes beyond all controversy that it came from the safety valve, which it seems was supplied with a contrivance designed to relieve the boiler of the engine from a dangerous pressure of steam which was liable to accumulate while the engine was standing. This contrivance worked automatically. It was not under the control of the engineer, and consequently, as was said in the Scaggs Case (supra): “ It cannot, of course, be pretended that the use of such a device, adopted for protection from danger and which acts mechanically * * * is negligence.”
It is contended, however, that the engineer might have modified, if he could not have altogether prevented, the escape of steam from the safety valve by injecting water into the boiler while the engine was standing at the crossing. The result of such management, however, would necessarily have been to reduce the steam in the boiler, and if resorted to whenever the engine stopped would occasion a degree of delay and annoyance which the defendant could not with any sense or propriety be subjected to.
The precise question which we are now considering was recently decided by the Maryland Court of Appeals. (Duvall v. Baltimore & Ohio R. R. Co., 73 Md. 516.) There, as here, a train was standing at a highway crossing; the locomotive attached thereto was supplied with an automatic device to regulate the escape of steam from the safety valve; a traveler upon horseback, seeing the train and the flagman standing near by with his flag furled, attempted to cross in front of the engine, when his horse took fright and its rider was thrown to the ground and injured. It was held at the trial that these facts were insufficient to justify a jury in finding negligence upon the part of the defendant; and in sustaining the view enter*39tained by the trial court the Court of Appeals said: “ The noise which frightened the plaintiffs horse was caused by the escape of steam through a safety valve attached to the engine, an appliance in ordinary use, and attached to all the defendant’s engines. And we are not prepared to hold that it was the duty of the defendant towards persons crossing its tracks to use every possible contrivance that human ingenuity might devise for the purpose of suppressing noises caused by the escape of steam, or from the movement of trains. We have been referred to no case which goes to this extent, nor do we think that such a contention can be supported on any sound principles.”
But even if there were any doubt concerning this branch of the case, we are convinced that the plaintiff must fail in her action by reason of the fact that contributory negligence upon the part of her intestate was established beyond all question. She testified that both she and her husband were familiar with this crossing; that they had been over it frequently; that they had seen steam engines and cai’s on a great many occasions, and knew that all steam engines were liable to eject steam, at times, when standing or moving. She also testified that the engine was in plain sight as they approached the crossing, and it necessarily follows that in attempting to make the crossing in the manner they did, they knew they were encountering a peril which was liable to produce just the result which followed.
It would be difficult, we think, to conceive of a case where the doctrine of assumed risk could be more appropriately applied than in the present action. And that both the plaintiff and her husband were conscious of the risk which they were assuming, appears from the repeated declarations made by the former at the time of the accident, which, although subsequently denied by her, are established by evidence which is absolutely conclusive in its character.
The judgment and order appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Follett, J., not sitting.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.