(dissenting):
I dissent from an affirmance of this judgment.
It is upon their application to this case rather than. upon'the existence of the rules of law -themselves- -that the court differs.. It is well" *725enough, however, to state such rules as are necessarily involved on this appeal.
No rule, I apprehend, is better settled than the one that a single traveler on a highway, whether on foot or in an open vehicle, who seeks damages for injuries from a collision at a railroad crossing, must prove, if of sufficient age and understanding so to do, that as he approached the crossing he looked and listened for approaching trains.
This rule is so strict that where a temporary obstruction to vision arises, as from smoke and steam, he must wait until such obstruction has ceased. (Keller v. Erie Railroad Co., 183 N. Y. 67.) And the law is so careful that so reasonable a rule shall be observed, that when a traveler could have seen an 'approaching train if he had looked, and testifies that he looked and did not see it, it will deem his testimony incredible, and hold him guilty of contributory negligence as matter of law in failing to exercise ordinary caution. (Dolfini v. Erie R. R. Co., 178 N. Y. 1.) The requirement of proof of looking and listening is such that where one is killed in such an accident the testimony of his companion that he himself looked and listened and did not hear or see the approaching train does not establish the fact that the deceased person would have failed also, had he looked and listened. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 424.) .
Nor is one relieved from' this duty to look and listen because he. is riding in a vehicle as the guest of another where he has the opportunity so to do. Such is, the express holding of Brickell v. N. Y. C. & H. R. R. R. Co. (120 N. Y. 290), and I know of no decision overturning the rule there laid down or questioning its correctness. Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199) is not to the contrary or less stringent. In that case the wife was 'riding with her husband, who was driving, and both were killed. The husband had stopped his horse twice before attempting to cross the tracks, and the presumption was indulged in from that and other facts, that both saw the approaching train, and that the wife had no reason to suspect that her husband.was about to cross in front of it, and hence was not called upon to warn him, and, therefore, that the question of her contributory negligence was one for the jury. Finch, J., says: “ The deceased and her husband either saw the passenger train approaching as they neared the track, or *726they did not. ..If they did not see it, or, at least the deceased did not see it, she jvas negligent, for- she was bound to look and listen, and the facts show that if she had looked she could have seen, and would have seen the approaching train. She' had no right, because her husband was driving,, to omit some reasonable and prudent . effort -to see for herself that the crossing was safe. But the .strong-' probability is -that she did see the- train, and her. husband.'did álso,' and that he, for some reason, undertook to cross in its front,- miscalculating, perhaps,, its distance and speed and liis opportunity. She was not hound to .suspect that purpose until she saw it being executed. Before that she might i-easonably expect him to stop and-wait. When she saw. that he was about to make the attempt they must have been very' close to the track. -She was not bound to jump from the wagon:- That might seem to her as dangerous as to-' sit still. She could not be required to seize the reins or interfere with the driver.. That is almost allways dangerous and imprudent. She might -have begg.ed her husband to stop, and we do not know-that she did not, but if she did not and sat silent it does not follow, as matter of law, that she was negligent.”
This ’ carefully chosen language cannot he interpreted as holding that the wife was under, no obligation to look and listen for approaching trains. On the contrary, it is expi-essly said -that such -was her .duty, and that, presumably, she had done so- because-the lioi'se had .been twice stopped apparently for no other purpose than observation.- Having, performed her-duty in this- respect, and having reason to believe that her husband would not attempt.to cross’ in front of the approaching train, or having no reason to apprehend that he was about to do so, manifestly she was not hound,, as matter of law, to - jump from the vehicle or to interfere with his driving, or to do anything further to prevent his sudden and; unexpected act.
Confessedly, the Hoag case is on the border line. with respect 'to proof of lack of contributory negligence. Applying its liberal rule, however,, in the .case at bar,- I think- the plaintiff failed to prove freedom.from contributory negligence and that, the judgment •in -her favor must -be reversed." '
The plaintiff was sixteen years'of age, strong, bright, alert, and' with good .eyesight. .'She was sitting in the rear seat .of .¿n open automobile which was approaching the track at an extremely slow *727rate of speed. At a point thirty feet distant from the track the train with which the collision occurred could be seen a distance of two thousand feet. -The plaintiff did not make any attempt to ascertain whether the train was approaching or not, for she neither looked nor listened for that purpose, but looked only ahead and around the machine. If she or' any occupant of the vehicle had looked they could have seen the train, and the automobile was going so slowly that the chauffeur could have stopped it within a few feet at any moment, and thus averted the horrible catastrophe which occurred. The fact that her father sat in the front seat with the driver of the machine, and that her mother and Mr. Beid sat in the back seat with her, does not and cannot, it seems to me, relieve the plaintiff from proving that she exercised the reasonable and ordinary precaution of looking and listening before she can ask the defendant to respond in damages. Of course, she was not called upon to interfere with the driver in the running of the machine, or to touch any of the levers or springs or to attempt to do so. But it was her duty to look and listen, and if she saw danger to warn the driver of the fact. Having done this, it might well be said that her duty was ended and that she was not called upon to do more, even if the driver persisted in crossing after being warned. But she neither looked and saw the danger of the approaching train, nor attempted to do so to enable her to give a word of warning’if necessary. Conceding, however, that the plaintiff was not guilty of contributory negligence as matter of law, I think there was error in the refusal to charge which requires a reversal of the judgment.
By its various requests the defendant, in substance, asked the court to charge that in view of the distractions to the chauffeur and his difficulty in threading his way through the crowd-v^ith his machine, it was the duty of plaintiff and the occupants of the car to be on the lookout for an approaching train, and not to rely wholly upon his vigilance in that respect. These specific requests were refused, except as already charged.
• While the court in its main charge did instruct the jury with respect to the general duty of plaintiff to avoid the accident, he failed to instruct them in the specific manner requested by the defendant, and I think, under the circumstances disclosed, the defendant was entitled to have these Specific requests charged. '
*728The difficulties under which the chauffertr was laboring in the guiding of his machine were apparent to the occupants of the car. They knew that he was about to cross the railway track upon which ' a train was likely to be approaching. They saw. that his attention was necessarily confined ■ to the ..propelling and guiding; of his car and the avoiding of the'pedestrians which surrounded it.- Under such circumstances, it became peculiarly the duty of the occupants of*the car, who had nothing else to do, to he vigilant in the- use of. their senses with respect to approaching trains. While-under many " circumstances it might be unwise and -even -da-ngero.us. to interfere, even by suggestion,, with the driver of an automobile, there are times .and .circumstances under which it becomes the duty of occupants -and guests in such a vehicle to remonstrate with the driver. The danger attendant upon the careless and reckless driving of such a; vehicle is great, and there manifestly comes a time when it becomes the duty of the occupants of the. machine to protest against reckless speed or heedless guidance under penalty of becoming a party to such recklessness and heedlessness. Such is thé rule with respect . to the driving of a horse and carriage in a heedless manner. (Meenagh v. Buckmaster, 26 App. Div. 451.) So,, too,, it becomes at times the duty of a passenger tp warn the driver of an automobile of approaching outside danger. Especially .is this so when it is apparent that his attention is necessarily distracted from the observation oE one danger by his attempt to avoid another. While the chauffeur may know much more about managing the machine than the passenger, his vision is usually no better and his opportunity-for observation not.so good as that of the occupants of his car. It is at times difficult to -start or stop an automobile and to guide it-in a, proper course; and frequently the driver -must- give his entire attention to these matters. Under such circumstances the occupant of the vehicle cannot sit supinely and trust to the vigilance of the dliver to observe and avoid all outside danger.
■ A situation was proven upon the trial to which! the requests to charge particularly applied, and which the.charge as given did not meet, and I think it was error for the court to refuse the requests.
The injuries of the.-plaihtiff were very serious and excité extreme sympathy and the defendant was clearly negligent, but I see no way of affirming the judgment in her favor except by the ignoring *729of well-settled rules of law;' and' I, therefore, vote for a reversal and the granting of a new trial.
Clarke, J., concurred.
Judgment and order reversed and new trial ordered, with costs to.appellant to abide event, unless plaintiff stipulates to reduce recovery to $25,000, ip. which event judgment as so .reduced and order affirmed, without costs. ' Settle order on notice.