I agree that the judgment and order in this case should be reversed and a new trial ordered, but prefer to rest my conclusion upon the *310ground that the'plaintiffs’ intestate, as matter of - law, was guilty of contributory negligence. .
On the 22d- day of December, 1900, when the accident in ques tion occurred, a statute was in existence in this State which required that “All trains and locomotives on railroads' crossing each other at grade shall come to a full stop before crossing, not less than two hundred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing.” (Laws of 1898, chap. 466, amdg. Laws of 1890, chap. 565, § 36, commonly known as the “ Railroad Law;”)
It is conceded that this statute was not regarded by Lonergan, the plaintiffs’ intestate. On the contrary, it is established by indisputable evidence that instead of coming to a dead stop he proceeded With his engine towards the crossing of the defendant’s road at a rate of speed of not less than four miles an hour, and probably as great as six or eight, and that his engine was struck within six feet of - the rear end of the tender by the defendant’s engine which was attempting to make the crossing at the same time. This fact demon-' strates beyond all question that if Lonergan had obeyed the statute he would not have reached the crossing until after the defendant’s train had passed over it. It is true that a white target was exhibited from the signal tower at the crossing which indicated that the way was clear for Lonergan to make the crossing, but this did not absolve him from the necessity of obeying the statute and-taking such other precautions as were reasonable to protect himself from just such an accident as followed. (McGrath v. N. Y. C. & H. R. R. R. Co., 59 N. Y. 468.) .
In other words, he had no right to regard the exhibition of a white target as an absolute assurance of safety which would justify him' in disregarding the statute and closing his eyes to his surroundings, for the signal given might have been given as the result of a mistake upon the part of the- watchman, or, as the evidence tended to prove was the fact in this case, because the apparatus in the signal tower was out of order.
Row, it may be conceded that in one sense a violation of this statutory requirement is not per se a bar to the plaintiffs’ recovery, but that it is simply a circumstance to be considered in ascertaining *311the proximate cause of the accident which resulted in the death of the plaintiffs’ intestate. This, however, as I understand it, is the rule only where evidence is given which tends to show that the accident was caused solely by the wrongful or negligent act of the persons in charge of the colliding train. (Blanchard v. N. J. Steamboat Co., 59 N. Y. 292; Hoffman v. Union Ferry Co., 68 id. 385.)
Such, however, is not the case here. It may be assumed that the negligence of the engineer of the defendant’s train contributed to bring about the collision, but it cannot be said, in the circumstances of this case, that it was the “ sole ” cause thereof, for, as has already been stated, it may be fairly inferred, even if it be not absolutely demonstrated, that if the statute had been obeyed there would have been no collision.
The object of this statute is to guard, as far as possible, against just such results as here occurred, and we think its proper observance requires an engineer not only to stop within the prescribed distance of such a crossing as the one in question, but also to approach the same with caution and with his engine under absolute control. Ho other interpretation will satisfy the requirements of the statute or furnish to the public the protection which it was designed to afford.
But again, it is an undisputed fact that the train on the defendant’s road, which was approaching at the rate of about eighteen miles an hour, was in plain sight of the plaintiffs’ intestate for a considerable time before his engine reached the crossing, and had he taken the slightest precaution to cast his eye in the direction from which that train was coming he could not have failed to observe it in time to have avoided the collision.
For these reasons it seems to me that it was clearly the duty of the trial justice to have nonsuited the plaintiff, and that his refusal so to do was error which requires a reversal of the judgment and order appealed from.
McLennan, J., concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.