I dissent. In order to cross both tracks preparatory to taking an up train, the plaintiff and her husband waited for a down train to pass and stop opposite the station. Upon her direct examination the plaintiff testified : “ My husband crossed behind the train that had come in from the city, and I looked down and saw the train coming after I passed the back of this stopped car, or stopped train. Q. When you passed behind this stationary train and looked down and saw the train coming, where was that train ? A. Well, it was about entering the station. * * * Q. So what did you do? A. I made a detour up the track to clear the — Q. Towards Brooklyn ? * * * A. Yes, sir — to clear the train. * * * When I came out from behind that stationary train and saw this train coming in, I thought that this was that 10: 53 train which I wanted to catch. I received a dreadful blow on the head.” This is substantially all of the plaintiff’s direct testimony- as to her movements immediately before the accident. Upon the cross-examination she explained that from her position > betwéen the tracks, near the rear of the stationary train, whence she last looked at the approaching train, her “ detour” extended about thirty-five feet in the direction in which the latter train was running. In other words, after her last look, when she could have crossed in safety the single remaining track, she turned her back on the approaching train and walked about thirty-five feet, without looking, before attempting to cross, the train then being immediately upon her. It should not avail the plaintiff that she believed the train would stop, for a train stopping could properly reach the point of the accident, less than a car’s length beyond the rear of the down train.
I think that the plaintiff was guilty of contributory negligence, as matter of law, and that the judgment should be reversed.
Judgment and order affirmed, with costs.
• The following is the opinion by Mr. Justice Kelly upon the motion for a new trial:
Kelly, J.:In this case the plaintiff was injured in a collision with a train of cars at a grade crossing on a highway with the defendant’s double-track railroad.
*348The railroad in question is on a private right of way formerly used by a steam railroad, the train in the accident being operated by electricity. The tracks were substantially north and south; the highway runs east and west. The defendant maintained a station adjoining the highway on the south with platforms extending along the ontsidó of the'north and south-bound tracks.
' The plaintiff with her husband came up to the crossing on, the highway from the west intending to take a north-bound train which was scheduled to leave the station in question at ten-fifty-three' A. m.
■ She and her husband had taken this train before; it was a regular train running on a time table and stopping at various stations along the line. As they approached the crossing a south-bound train passed over the highway and came to a stop at the station platform to the south of the street. The plaintiff looked down to the south as the south-bound train was passing and saw a north-bound train approaching several blocks distant. The regular trains at this time of day ran at half-hour intervals and the plaintiff believed that the approaching north-bound train was the train which sire desired to take and which she supposed would stop at the station before crossing the highway. She proceeded behind the south-bound train then stationary, her husband preceding her, as he testified, with the intention of holding the north-bound train at the station until she reached it. The plaintiff says that on passing out from behind the stationary south-bound train she looked again and saw the north-bound train still coming on and apparently entering the south end of the station. The space between the two tracks was about six feet in width; she proceeded and was struck by the north-boiind train on the crossing.
The north-bound train was not the train which she intended to take, but was an extra train not scheduled, making no stops and running at a speed of twelve miles an hour on its way to lay up at the defendant’s yard. The plaintiff’s husband testified that he saw the train; that he supposed it was the train which he desired to board; that as the train came through the station he discovered that it was . not coming to a stop, threw up his hands to warn the plaintiff, but the accident occurred almost at the same instant. The plaintiff, her husband, and a number of witnesses, passengers and residents in the vicinity, testified that north-bound trains never passed over the highway without coming to a stop at the station.
*349There was evidence that no whistle or bell was sounded on the north-bound train; there was no flagman or other warning at the crossing.
The defendant gave evidence from the motorman in charge of the train that he sounded a whistle before it entered the station; that the plaintiff and her husband appeared suddenly in front of the train coming from behind the other cars when it was too late to avoid the accident. The motorman, a conductor and a police officer testified that this identical train ran every day across this street without stopping at the station as did other trains on the way to lay up in the yards. The plaintiff was injured so that as she claims she has permanently lost power in her right arm and hand, two of her ribs were broken, her nose was broken, her lower jaw was broken or injured so that she lost all her teeth; there was some injury to her1, kidneys and some permanent disfigurement. On a submission of the question of defendant’s negligence and plaintiff’s contributory negligence to the jury she has recovered a verdict of $12,500.
I think there was evidence here which required the submission of the question of defendant’s' negligence to the jury. The evidence as to the lack of whistles, bells or other notification that the train intended to cross the highway was for the jury. The obligation of the defendant was to give reasonable notice of the approach of the train and of its intention to run the train over the highway. ( Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583; Richardson v. N. Y. C. R. R. Co., 45 id. 846.)
It is true that notwithstanding the absence of signals the plaintiff saw the train; but as I read the decisions this does not authorize the court to say, as a matter of law, bn the facts here, that this was sufficient warning of the defendant’s intention to run the train across the street without a stop. I think this was a question for the jury.
The important question is whether the plaintiff was entitled to have the jury pass on the question whether she was free from contributory negligence. This case was tried and submitted to the jury on the theory that the rules applicable to steam railroad crossings at grade governed its disposition. The railroad train had the right of way subject to the defendant's obligation to give reasonable notice of its intention to cross the highway. On the other hand, *350this plaintiff was obliged to look and listen and exercise' her faculties to avoid danger. She could not take chances. The plaintiff’s contention is that the defendant having adopted a uniform practice of stopping all north-bound trains at the station before crossing the ■highway she was justified in proceeding. The question is important and not free from difficulty.
“ In general it may be imprudent to enter upon a track while a locomotive is approaching. Whether it is so in a particular case must depend upon the circumstances under which the attempt to cross is' made. And where, though in fact it may be hazardous, a traveler does so in consequence of the acts of the defendant he cannot be charged with negligence unless the risk or danger was apparent. In this case the engine although in motion made no signal that it was to pass the crossing, but a signal was given by its owner that it vras not to pass. The track and the moving engine were signs of danger, but the engine although moving was not dangerous unless it pa'ssed the crossing.” (Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234.)
The defendant by its method of operation had created a condition which I think a jury might say justified the plaintiff in supposing . that this train would not run across the highway without stopping. They might find that she was misled or, to use the words of Chief Judge Huger, “lulled into a sense of security” by the immunity which she had enjoyed. (Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355.) Having in view the long line of decisions imposing the obligation of care and caution on travelers on the highway when crossing steam railroad tracks, an obligation the maim tenance of which is I think of great importance to the public as well as the railroad companies, I have had some hesitation in arriving at this conclusion, but under the law as laid down in the cases cited and in the more recent case of Beecher v. Long Island R. R. Co. (35 App. Div. 292 ;.affd., 161 N. Y. 222) I think the verdict must stand. It is true that in this case the plaintiff was injured at a highway crossing and had not entered the defendant’s station, but I think the principles laid down in the cases referred to govern here. The amount of the verdict is liberal, but I cannot say that it is excessive. The defendant’s motion for a nonsuit and to set aside the verdict and for a new trial is denied.