(concurring) :
• iThis. case has been twice tried. The first trial resulted in a verdiet for the plaintiff of $1,000. ' This judgment was set aside by this, court by reason of an error in the charge of the trial judge. Upon á retrial the jury rendered a verdict for $6,500. From the judgment entered upon this verdict and' from an" order denying defendant’s motion for a new trial this appeal is taken.
Fulton street in the city of Troy runs east and west, and crosses the railroad tracks of the Troy Union railroad at 'grade at-the north end of the Union Station. The station is between Fulton street at the . north and Broadway at the south. The distance between the two streets is four hundred feet. In July, -1901, when, the plaintiff was injured, seven railroad tracks; extended through the station and across Fulton street at the north end thereof. - The width of the crossing on Fulton street, that is, the space occupied by those tracks', was eighty feet. Fulton street is itself sixty feet wide. The entire’, width of the street at this place was planked, and there was nothing to distinguish the sidewalk from the driveway. The railroad tracks belonged to the Troy Union road, which company has sole charge of them and their use. Three railroad companies ran their trains over the Troy Union railroad tracks into and from the Troy-Union. *115Station. These companies were the Delaware and Hudson Company, the New York Central, and the Boston and Maine. The trains of those companies, when on the Troy Union tracks in and about the station, were under the direction and control of the Troy Union Station Company. Between four and five o’clock in the afternoon of July 12, 1901, the plaintiff, with other employees of the Troy Union Company, was engaged on Fulton street, north of the middle of the street and near the east side of the crossing, relaying the plank on the crossing. On track Ho. 3 was a Delaware and Hudson engine. The engine headed north. The" train to which it was attached was a passenger train, due to leave the station for the north at five o’clock. It consisted of the engine and tender and five cars, four passenger coaches and one baggage car. The train occupied the whole station on track Ho. 3, between Broadway and Fulton streets, and the front end of the engine extended over and upon Fulton street. The accident is claimed to have happened at twenty minutes before five upon that day. Horth of this engine upon Fulton street was a sufficient space to allow a team to pass. While a horse was being driven along Fulton street ahead of this engine it became frightened by reason thereof, and running away struck and injured the plaintiff. For the injury sustained plaintiff has sued the defendant and recovered a judgment.
This case is not in any way affected by section 421 of thé Penal Code. This a criminal statute to be construed favorably to one charged with its violation. In the first place, a partial obstruction only of the highway is not within its terms. Again, a willful obstruction is one caused maliciously, without proper motive. An engineer who purposely obstructed a crossing in the reasonable conduct of his train is guilty of no violation of the statute.
The right of a railroad company to cross a highway carries with it the right to pass over that highway and obstruct the same so far as reasonable necessity requires. While in the exercise of duties called for by the reasonable exigency of its work it is guilty of no wrong and of no negligence by reason of its occupation of the highway. If an engine or car is placed upon a public street and left there when there is no reasonable "necessity therefor, the company is then guilty of creating a nuisance and unlawfully obstructing a public highway.
It is not a matter of public interest how long a train remains at a *116station, unless by reason of its length it extends upon or across a highway. ■ If an accident is caused by its being upon the highway, the question is then was it there at the time of the accident from a reasonable necessity of the service ? If a, train should pull into- a station and necessarily dccupy an adjoining highway five minutes before it was scheduled to leave it would probably be held as matter of law that it was properly upon the highway. If a train, liowever, pulled into a station and occupied an adjoining highway a longer time before leaving, it might then become a question of fact as to whether it was necessarily upon the highway at the time of the accident. In the case at bar' this train was to leave\ at five o’clock. The accident was at four-forty. The jury should have been allowed to-say whether it was reasonably necessary for this train .to occupy the highway at the time of -the accident. . If not, 'the fact of such occupation was a wrongful act, and if by reason thereof this horse was caused to rtin away,, injuring the plaintiff, defendant is responsible therefor.
This case was submitted to the jury solely upon the question as ,to whether the highway was being willfully obstructed at the' time of the accident, and whether by reason of such willful obstruction this injury was. caused. In view of the conclusions herein expressed,, the judgment must be reversed because based upon an erroneous theory of the law.
I do not agree that defendant-may' shield itself behind the contract with the Troy Union Company which owns the station and tracks upon which its train was standing. While in the station those in-charge of defendant’s trains müst obey the orders of the station master of the Troy Union Company. The contract sworn to, however, does not authorize the Trov .Union Company to require defendant to bring its . train to the station twenty minutes before starting time. Nor is there a word of evidence that the train was brought to the station at that time by order of the Troy Union Company. The control of the train while át the station may be with the 'Union Company, hut not the ti/me of its coming. When the train is so long, however, as to necessarily extend into one street Or the other, the time of its coming is the vital question in determining whether at the time of the accidént it was Unnecessarily upon the highway as a. nuisance. Whatever the terms of the con*117tract, it would, not be construed to require defendant to obey an instruction of the station master to do an act which would amount to a nuis'ance. But howsoever the contract may be construed, a defendant can no more excuse a wrong by alleging that the wrong charged was committed under a contract with another than it could defend a crime by alleging that the crime charged was committed under a contract with another.
I do not mean to indicate that in my judgment the relations between the defendant and the Troy Union Company were wholly immaterial. Where there are several railroad companies occupying the same station,, what would be a reasonable time to bring a train into a station for the purpose of allowing passengers to enter might be very different than if the defendant was alone occupying the station. All the conditions under which the defendant was there, including, reasonable requirements of the Troy Union Railroad Company, should be considered in determining whether there was reasonable necessity for the presence of the train in the station, and for its partial occupancy of the highway at the time.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.