I agree that the court should not have charged the proposition, correct in the abstract, “that where a crossing is temporarily obscured by the smoke of a passing train it is the duty of one wishing to cross over to wait until the smoke clears away sufficiently for him to see up and down the track,” but properly left it to the jury to say what care should have been exercised in that respect in view of the implied invitation to cross the track extended to the plaintiff by raising the gate ; and I also agree that there was sufficient evidence to warrant the jury in finding that the gates were raised at leastssix feet and then lowered after the deceased had passed under, but I think the evidence of the plaintiff shows that the deceased did not exercise due care.
Notwithstanding the raising of the gate, the deceased was bound to be alert; he could not rely implicitly on the implied assurance that the crossing was safe, and proceed oblivious of his surroundings. (Oldenburg v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 414, 418.) In that case the gates were fully raised, the gateman shouted to a team in waiting to go ahead, and it was proceeding to do so, and the deceased could only have seen the approaching train if he had looked an instant before he was hit, and it was held that the question of his negligence was for the jury. In the case at bar it appears that the deceased was familiar with the locality, as he was employed at the cemetery on the north side- of the track, and was in the habit of crossing at that point to go to his work in the morning. There were two tracks at this point, an east and-westbound track, the distance between the rails of each track being four feet eight inches, and between the tracks five feet four inches, so it was ten feet from the south rail of the east-bound track to the south rail of -the west-bound track. The freight train had passed to the east, and in traversing that distance of ten feet the deceased must have had an unobstructed view of the" approaching west-bound *633train, except as liis view may have been obscured by the trail of smoke from the engine on the freight train, about which there is some conflict, the plaintiff’s theory being that the view was entirely obscured; the defendant’s, that the wind had carried the.smoke to the north, leaving the view of the track clear. The latter theory seems to be altogether the more probable. If we adopt it, we must hold that the deceased was negligent as matter of law. lie was on foot, in control of his own movements, with nothing to look out for but himself; and even though the gates were raised sufficiently to warrant him in inferring that it was safe to cross, in the exercise of reasonable care he should have discovered the approaching train in time to avoid it unless his vision was obscured by the smoke. The care required on crossing the tracks of a steam railroad is much different from that required on crossing street car tracks in a city street. A person on foot, in the exercise of due care, will usually discover an approaching train at a steam railroad crossing in time to avoid it, and it is only when exceptional circumstances exist that the inference of negligence is not so irresistible as to compel a holding to that effect as a matter of law. If we assume that the plaintiff’s theory is correct and that the view of his intestate was obscured by the smoke, that fact required greater caution on his part. While it may not have been negligent as matter of law to cross before the smoke had cleared away, in view of the raising of the gates, the presence of the smoke at least imposed on him the duty of being in control of himself. The plaintiff’s own evidence shows clearly that the deceased saw the train when he was in a position of safety. When in the middle of the east-bound track.he and his companions stopped and looked to the left and to the right; his companions jumped back ; he started to run and was struck as he was crossing the last rail of the west-bound track. While it is not negligent to err in judgment or to do an imprudent thing on the spur of the moment when suddenly confronted by imminent peril, the situation on the plaintiff’s theory was. such as required the deceased, in the exercise of due care, to be on the alert so as not to be disconcerted by the very thing which it was his duty to look out for. The conclusion is irresistible that if the deceased had stopped when he first saw the train he would not have been hit. Instead of doing that he tried to run ahead of the train, and whether he deliberately took *634the chance of being hit or was disconcerted .because he had not been paying sufficient lieed theretofore, he was guilty of negligence, and the complaint should have been dismissed on that ground.
Jenics, J., concurred.
Judgment and order affirmed, with costs.