This is an appeal from á judgment in favor of the plaintiff in an action brought to recover damages for personal injuries, and-the order denying defendant’s motion for a new trial.
Plaintiff was injured while attempting to cross the railroad tracks of defendant in front of one of its trains at Van Cortlandt Park. He was the chauffeur driving- an automobile in which there were seated at the time besides the plaintiff, Frank B. Read, Mr. and Mrs. Noakes and their daughter. At this crossing defendant maintained a doiible track. The automobile coming from the west had safely crossed the first or south-bound track and was struck by a passenger train going north on the north-bound track. As plaintiff .approached this crossing from Spuyten Duyvil creek, a dis-. tance of 175. feet, he had a. clear and uninterrupted Aiew of the track to the south upon which the train was coming for a distance of 2,000 feet to. Independence bridge. The train Avas running at a speed of forty miles an hour when it passed under Independence bridge; when half-way between the bridge and the crossing and distant about 2,000 feet from it, the speed was reduced to thirty-five miles an hour, and it passed over the crossing at a speed -of fifteen miles an hour. The plaintiff testified that after the auto*791mobile crossed the creek it did not exceed in speed three or four miles an hour. '
The evidence of the plaintiff is that when he crossed .the bridge over the creek he looked toward the south to see if there was a train coming; that he was able to see as far south as Independence bridge ; that he saw no train; that he then proceeded very slowly over an- up grade to the crossing; that when he was about twenty-five or thirty feet from it he looked again to the south and again saw the tracks as far as Independence bridge and that he saw no train approaching.. At the time of the accident several hundred people had gathered at the station twenty feet from the crossing, waiting for the arrival of trains; they were standing on both sides of. the tracks, a. south-bound train being scheduled to arrive at this station one minute after the north-bound train, and both were on time. The south-bound train was standing at a water tank one hundred and thirty feet north of the station at the time of the accident. It is agreed by all that this train was not moving, consequently it presented no impending danger to plaintiff. Many persons who had been participating in golf' and ball games in the neighborhood were proceeding down the road to the station, the automobile being hemmed about by these people; they were in front, in its rear and on both sides, all going in 'the same direction. Plaintiff did. not stop as he approached the crossing, and as he was passing over the first rail of the north-bound track some of the people about him screamed and fell back; he then looked to the south and saw the approaching train about four hundred feet away and immediately gave the machine more power in an effort to cross ahead of the train, which struck the automobile, killing Mr. Read and injuring plaintiff and the, other persons riding with him. Miss Noakes subsequently brought an action against this defendant for damages alleged to have been sustained by her, and the recovery has been upheld upon the ground that her age, sex and the position she occupied in the automobile removed the case from the rule which imposes the duty upon a passenger in a vehicle approaching a railroad crossing of looking and listening, it having appeared on the trial that she neither looked nor listened (Noakes v. N. Y. C. & H. R. R. R. Co., 121 App. Div. 716); and the Appellate Division, first department, in a carefully written opinion by Mr. Justice Ingraham, *792lias recently reversed a judgment obtained by the executrix of Mr. Read holding that the evidence'established affirmatively the negli gence of deceased as matter of law. He says: ■“ It was-certainly contributory negligence to place this automobile immediately in front of a rapidly approaching train, where there .was nothing.to obstruct the .view or to prevent those in the automobile from seeing the approaching train, and wliile'the deceased was not chargeable with the.negligence of the chauffeur, it was his duty to look and listen for approaching trains when he was approaching the track, although a passenger, and to prevent, so far as he could, the chauffeur from crossing in front of the train, and a failure to perform" that duty is contributory negligence. * * * The duty imposed upon the deceased requires ' that he should look and listen before the vehicle is placed in a position that an accident would result if a train is approaching, and a failure to perform that duty is contributory negligence that relieves the defendant from liability.”* The special circumstance's in the Noakes case do not exist in the case at bar, as the plaintiff is a man forty-one years of age, in full possession of his faculties, and there is nothing appearing that would relieve him from the duty of exercising care in approaching this crossing,- Tlie accident occurred in broad daylight on a clear, pleasant day. The evidence establishes to our entire satisfaction that the train which collided with the automobile was in plain sight long enough to have enabled him to shut off the power and bring the machine to a standstill «before reaching the ' track; at the rate of speed at which he was moving he might have stopped the car almost immediately. It is impossible to believe that with the exerciseof ordinary care the plaintiff coiil'd not have seen the approaching' train • and avoided the accident; the only diligence shown to have ¡been exercised by plaintiff was to look from two different points to the south, where the train was approaching in plain view, without seeing it. He passed over the last thirty feet before reaching the tracks, the most dangerous -part of the route, without looking, and it is no excuse to say that he was hemmed in by the people bound for the station. These conditions were only temporary and would shortly pass away. (Common prudence, if necessary -to properly handle his machine, required him to stop and proceed no further until he could exercise full vigilance. (Heaney *793v. Long Island R. R. Co., 112 N. Y. 122.). The fact that he did not see the train under these circumstances did not create an issue of fact to be determined by the jury, and their verdict cannot be permitted to stand. (Dolfini v. Erie R. R. Co., 178 N. Y. 1; Fiddler v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 95; Swart v. N. Y. C. & H. R. R. R. Co., 81 id. 402; McAuliffe v. N. Y. C. & H. R. R. R. Co., 88 id. 356.)
The judgment and order must be reversed and a new trial granted, costs to abide the event.
Jenks, Hooker and MiLLERj JJ., concurred; Gaynor, J., read for affirmance..
Read v. N.Y.C.& H. R. R. R. Co. (133 App. Div. 228.)—[Rep.-