The plaintiff was injured while crossing the'defendant’s double track railroad in a motor car which he was driving. His employer was also in the car with his wife, son, daughter and another person. The car was going East along a public road, and the tracks ran North and South. The crossing was in a large city park called Van Cortlandt Park in the open Northern territory of the City of New York. The motor car had passed over the first track and was struck by the engine of a passenger train going North at or about the right hind wheel as it was nearly over the second track. All the way from a point on the road whence the motor car had come, about 170 feet from the first track, i. e., at a bridge over Spuyten Duyvil Creek, the view south along the railroad tracks was clear for 2,000 feet, namely, to a park, road bridge under which the tracks ran. The plaintiff' testifies that he looked south along the tracks at the said point 170 feet from the first track, and again when 25 to 30 feet from the said track,- but saw no train.- Except for facts now to be stated, the decision in Dolfini v. Erie R. R. Co. (178 N. Y. 1) would apply to the case, Í. e., .that the plaintiff must have seen the train in time to avoid the collision if he had looked, for lie could not have looked without seeing it if it was 'there, i. e., between the crossing and the bridge under which it came. But the facts are such in this case that the train might not yet have come under the bridge and in sight when the plaintiff looked even the second time.
As he came along the road to and upon the crossing there was a *794great throng of men, women and children massed around the motor car, and so close as almost; to touch it. They were in front,-behind and on each side'. They had been at the ball games in the park, and the games being just then ■ over, were going home, some by the railroad, which had platforms to the West side of the crossing. .They were swinging bats 'and talking and shouting hilariously. There was also the . noise of a waterfall in Spuyten Duy vil Creek at the bridge already mentioned which the motor car crossed, and also the noise of the motor car itself which was going up grade. It was going slowly-—so slowly, as the jury could have found, that it could not go slower without coming to a stop. The.part of the crowd in front.of- it xvent upon the crossing as it followed, along. The view of the track to the north was obstructed by foliage and a station-building along the said distance of 170 feet. ■ The plaintiff testifies that as he was passing the said .building he heard the noise of an engine exhausting steam to the north, ’and as he cleared the building he looked in that direction and saw it -by the water tank and was not certain whether it was in motion or standing there. There is other evidence that the engine was there with a train and making noise. , As the. motor car had crossed the first track and got on or over the first rail of the second there was a sudden cry from the crowd, which sprang out of the way, and as the" plaintiff looked south again he saw the train winch struck the motor car coming about 400 feét axvay.. He immediately put on 'poxver to go ahead as fast as possible. It would have taken more time to back up. The testimony of ■ the engineer is' that as he came under the said bridge 2,000 feet from the crossing he was going 40 miles an hour, that when he had got half way from there to the Crossing he was going 35 miles an hour and that he went over the crossing at 15 miles an hour. There is a dispute as to xvhether the-engine bell was rung, but it may be assumed that it was. Ho whistle was blown." There was a dispute xvhether the electric bell at the crossing rang. The jury could have found that the noise from the holiday crowd'was so great that neither hell could be heard. It was a Sunday afternoon in June, about 5 o’clock.
Considering how sloxvly the motor car was moving with the crowd pressed about it, it cannot be said that when the plaintiff looked south when 25 to 3.0 feet from the first track the train had *795already come in sight. The learned brief for the appellant gives ■ the number of seconds which the train took to get from the bridge to the crossing, 34.09 seconds, and then figures out mathematically that at the rate of 4 miles an hour the motor car would have come from the said point 170 feet from the first track to .the rail of the second track in about 31.1 seconds, so that the train must have been in sight 2.99 seconds when the said point was reached. This would do if we could say that the motor car averaged that rate. The plaintiff testifies that it did not go over 3 or 4 miles an hour approaching and crossing the first track, but he also says it was going so slow that it could not go slower without stopping; and from this and all of the evidence the jury could have found that it was going much slower than 3 or 4 miles an hour. It could go no faster than' the noisy and loitering crowd which surrounded it. And considering all of the distractions which necessarily engaged the plaintiff’s attention, it cannot be said as matter of law that he should have looked again between the time of his second look, i. e., when 25 to 30 feet from the first track, and his third look- when he saw the engine 400 feet away. He had many things to look to.
The learned trial judge was not in error in refusing to charge the request of defendant’s counsel that if the train was in sight when the plaintiff “ looked 30 feet from the track ”, proceeding “ was negligence on his part and he cannot recover ”.. In sight might mean 2,000 feet away — coming under the bridge — and whether it was negligence to proceed, he being so close to the track and the train so far away, was a question of fact and not of law. Bequests have to be technically correct in order' to base error on their refusal.
Ho claim is made that the deferidant was not negligent. In the case of Noakes v. N. Y. C. & H. R. R. R. Co. (121 App. Div. 716), which grew out of this same collision, the question of the defendant’s negligence was disposed of. Its negligence in coming to such a crossing not only in the city but in a public park and with a crowd ahead, at such a rate of speed, seems to have been gross.
The judgment should be affirmed.
Judgment and order reversed and new trial granted, costs to abide the event.