Plaintiff’s intestate was killed at or near the crossing of the defendant’s road over Mill street in the city of Rome. The defendant’s tracks and the street at Mill street are nearly at right angles. There are four tracks at this point, Nos. 1 and 2 being used for passenger trains, No. 3 for west-bound freights and No. 4 for east-bound freights. At a point seventeen and one-half feet south of the center *576line of track No. 1 a train could be seen for a distance of one and one-half miles as it approached the crossing from the east, and the tracks were straight for two or three miles beyond that point. At a point twenty-five feet south of the center line of track No. 1 a train approaching from the west could be seen for a distance of 850 feet; at twenty feet south it could be seen for a distance of 1,075 feet west, and from a point ten feet south a train could be-seen approaching from the Avest for a distance of 2,100 feet on track No. 1. There is a slight curve to the south a short distance east of Hill street.
The accident occurred on February 26, 1902, in the evening. Stack, the intestate, lived in the neighborhood and was familiar with the location.
The testimony of a witness introduced by plaintiff was that he saw the deceased on Mill street, and at the time a passenger train was passing eastward. When last seen by this witness the deceased was standing near the gateman’s shanty; the east-bound train, had not yet passed over the crossing; a west-bound passenger train was passing over the crossing at or about the same time that a portion of the east-bound train was upon the crossing. The body of Stack was found a few feet Avest of the east sidewalk of. Mill street, between the sidewalk and the driveway. There was some testimony given on the part of the defendant which tended to show that the deceased was walking upon track No. 2.
The theory of the plaintiff is that Stack attempted to cross as soon as the east-bound train had cleared the crossing in front of him, and was struck by the Avest-bound train. The contention of the defendant is that he was walking upon the track at a point about from 120 to 150 feet east of Mill street, and was there struck by the train and carried or thrown to the point where the body was discovered. The only mark of violence upon the body was upon the head, the back of the skull being crushed in.
The evidence tended to show that at the time of the accident the gates of the crossing were up ; the gatetender, having been obliged to temporarily leave his post, had placed another man in charge to operate.
The trial court was requested to charge: “ That if the plaintiff’s intestate approached the crossing from the direction as claimed by *577Coleman (the only witness upon the subject) he was bound as a matter of law to wait until the east-bound train had passed so that he could get a view of the west-bound track before he proceeded to cross- the tracks, and if he failed to wait until he could so see that he cannot recover.”
The court refused this request, and the defendant duly excepted.
Before the jury retired, the stenographer, at the request of the plaintiff’s attorney, read the foregoing request, and plaintiff’s attorney then stated: “ My notion is -that that first request is right; that is, it is a question for them to find whether it was his duty as a reasonable, prudent man to do that. The Court: Do you want me to change the form of my charge ? (Plaintiff’s Counsel): Yes, sir. The Court: The counsel asks me to change the form of my charge and leave it to the jury to say whether as a reasonably prudent and cautious man under the circumstances it was his duty to wait for the train to get by. I will modify my refusal so it may stand in that way. (Defendant’s Counsel): And your Honor declines to charge as requested ? The Court: I decline to charge in the form of the request. But I do charge in that way.” To which an exception was taken. A juror then asked: “ How do we understand this last charge % That this man was a prudent man-The Court (interrupting): By the charge as modified it is left to you to say whether as a reasonably prudent and cautious man, under the circumstances, he was bound to wait until the east-bound train got by.”
There was a verdict for the plaintiff, and a motion for a new trial, which was denied.
We think the defendant was entitled to the charge as requested, and that if the deceased did go upon the west-bound track without waiting, after the east-bound train had passed, to see whether a train was approaching on the west-bound track, the plaintiff was net entitled to recover.
No importance can be attached to the fact that the gates were up, as it was notice to him that they were not being operated against trains passing at that time, and he had no right to rely upon their being open as evidence that the track was clear. While in some cases it may be that a failure to close the gates is an indication to people desiring to cross that trains are not approaching, yet it would seem that this can hardly be applied to the case of a foot passer *578upon the highway, who, by the most common and ordinary means of observation, can ascertain the approach of trains. It may be that people approaching with vehicles and animals which require their attention to handle and manage, or those who have not opportunity to observe the trains, would be excused for their failure to observe a train by a reliance upon the closing of the gates. This is only an application of the ordinary rule that people should exercise such care as the circumstances ordinarily require. But it can hardly be said that a passer upon the highway, who; knowing that trains are frequently passing, and that they are. liable to pass at any point upon the tracks/ with a clear and unobstructed view for miles in one direction and hundreds of feet in the other, but without looking, at a point where he has full opportunity of discovering any peril that may exist by reason of passing trains, yet fails to make any observation, has exercised that ordinary care and prudence which every person is bound to exercise. The deceased must have known that during the interval he was waiting for the east-bound train to pass that a west-bound train might be in the vicinity; and an almost casual observation of the west-bound tracks must have disclosed to him the approach of the train by which he was killed.
This much is upon the theory of the plaintiff; but beyond this is the testimony.'adduced by the defendant as to the position of the man upon the tracks, and which seems to be borne out at least in some respects. This testimony, if different deductions might.fairly and impartially be made from it, would warrant the submission of the questions to the jury; but the plaintiff in this case is bound to show affirmatively that the deceased was free from contributory negligence. The evidence fairly interpreted, it seems to us, shows that he must have stepped upon the tracks without making any observation to discover whether there was a train approaching from the east or not. Had he made any observation he could not have failed to discover the approach of the train, and it is no excuse to say that the noise of the east-bound train, or such circumstances as ordinarily follow the operation of trains, distracted his attention. If the ordinary circumstances are such as to disttact, then his observation should have been proportionately guarded and increased. It was his duty not only to observe, but to make his observation effectively, so far as the circumstances permitted.
*579“ A person whose power of vision is temporarily obstructed by some supervening condition, should take the greater care, and should,, if it be possible, await its passing away. If he neglects to proceed cautiously, he must accept the consequences of his undue precipitation.” (Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224; Heaney v. L. I. R. R. Co., 112 id. 122.)
The case of Heaney v. L. I. R. R. Co. (supra) has never been overruled, and the expressions of the court in McNamara v. N. Y. C. & H. R. R. R. Co. (136 N. Y. 650) expressly recognize the correctness of the decision of the Heaney case upon the facts there, presented. The case under consideration differs quite materially in its facts from the case of McNamara v. N. Y. C. & H. R. R. Co. (supra), and the latter case cannot be said to be controlling.
We think that the plaintiff failed to show a condition which excused' the deceased from looking before attempting to cross the. track, and he is, therefore, within the rule holding that one who. with opportunity to observe under circumstances in which an ordinarily prudent person would observe, and yet fails to make the observation which would insure his safety, is guilty of such negligence as to preclude a recovery.
The judgment should be reversed upon the law and facts and a new trial granted, with costs to appellant to abide the event.
All concurred; Hiscock, J., in result.