Upon April 26, 1900, plaintiff was struck by one of defendant’s engines at a highway crossing in the village of Craryville, Columbia county, N. Y. That the defendant failed to give warning, either by bell or whistle, of the approach of this train to the crossing is shown by the evidence of several witnesses, who swear positively that they were listening for such warning and heard none. The fact of the plaintiff’s freedom from contributory negligence was one for the determination of the jury within well-settled authorities. This judgment is sought to be sustained upon two grounds : First, that the defendant owed no duty to the plaintiff, because the plaintiff was not in the act of crossing the defendant’s tracks; second, that plaintiff has not shown that the defendant’s failure to give warning caused plaintiff’s injury.
Upon the highway crossing the defendant’s tracks, and about ninety-five feet from said tracks, was a hotel, in front of which the plaintiff was standing with his horse, facing the railroad. He was there waiting for a man from the hotel, who was to ride with him to a sale. It does not appear whether or not in going to this sale the plaintiff was required to cross the track. While thus waiting the defendant’s train approached the crossing without warning. The horse became frightened, reared and plunged, and, getting beyond the control of the plaintiff, ran across the track. In crossing the wagon was struck by the defendant’s engine and the injury thus caused. The defendant first claims that, inasmuch as there is no evidence that the plaintiff was intending to cross defendant’s tracks, *366the defendant owed him no duty to give warning of the approach of this train. To this claim I cannot accede. Formerly the statute required specific notice to be given of an approach tó a highway crossing. While that statute has been repealed the duty is still held ■to exist to give a reasonable warning of approach. The right to the free use of the highway belongs to every one, whether about to cross the railroad track or not; and the warning required of the approach of a train is, I believe, for the use of all those who have occasion to use that highway, whether about to cross the railroad tracks, or whether with horses liable to be frightened they are making use of the highway for legitimate purposes at points near the crossing. The rule as thus stated does not impose upon the railroad the duty of giving warning where the' highway approaches the track but does not cross the same. Where, however, the highway is intersected the duty of giving warning of the approach of trains rests upon the company for the benefit of all travelers upon the highway. This plaintiff had, I think, the right to assume that the defendant would perform the duty which the law has placed upon it, by giving reasonable and adequate notice of the approach of its train. And that duty was, I think, owing to the plaintiff, irrespective of his intention either to cross or not to cross defendant’s tracks.
The trial court has held that there was not sufficient evidence to justify a finding of the jury that the defendant’s negligence has caused this injury. The court stated upon its decision that there was no proof that, if a warning had been, given, the plaintiff intended to turn around, and that there was no opportunity to turn around and get away from the crossing, even if plaintiff had been warned of the approach of the train. In front of the hotel the road was twenty-eight feet wide. It cannot, therefore, be said, as matter of law, that it was impossible for the plaintiff to have turned around and escaped the danger. But whether he could or not, he might have obtained assistance from some of those near by. The plaintiff swears that he was .listening for the approach of the train. Evidence would have been inadmissible of what was- his intent if warning had been given. In Finn v. D., L. & W. Railroad Company (42 App. Div. 524) it was held, “ That it could not be said, as a matter of law, that the plaintiff would not have availed- herself of a proper signal *367of the approach of the locomotive, if one had been given.” It is difficult to conceive how the plaintiff could have proven in any other way that the defendant’s negligence caused this injury. In this case it appears that the fright of the horse and the consequent injury was the result of the approach of the defendant’s train, and that approach was made without. the warning which the law requires. With the further fact appearing, that the characteristics of the horse were unknown to the plaintiff, and that he was on the lookout for the warning which he had a right to expect, I think the real cause of the injury becomes a question of fact for the jury, and the court could not, as matter of law, say that he would not have availed himself of that warning to protect himself, either by turning his horse from the place of danger, or by securing help from some of those standing near. T am of opinion, therefore, that the complaint was improperly dismissed, and that the plaintiff is entitled to a new trial of this action.
Judgment affirmed, with costs.