We think the evidence in this case fairly presented a question of fact for the jury as to whether the defendant was guilty of negligence in the management of the gate, or in running the train which produced the injury to the plaintiff’s intestate. The defendant having constructed and maintained gates on either side of this railroad crossing the street, and, as the case shows, having charge of such gates, the public have a right to rely with some degree of confidence that it will so operate the same that the traveler
*180upon the highway will be excluded from the railroad tracks when trains are approaching in dangerous proximity to the street; and while such traveler may not rashly or presumptively rely upon the condition of the gates, but must, to avoid the imputation of contributory negligence, make use of his judgment and senses to avoid danger, yet when he finds the gate open, and drives upon the track, and is injured, it becomes the question of fact for the jury to determine whether the railroad company was guilty of negligence in allowing the gate to be opened by a stranger, and the traveler upon the highway thus, put off his guard,- or invited by the appearance to enter, and thus expose himself to danger. Yegligence in the management of the gates may consist as well in allowing a stranger to open them, as in the negligent opening of them by the company’s agent; and 1 think it is for the jury to say whether, upon the evidence in this case, the defendant negligently permitted the gates, which were placed there as a warning and safeguard to the public, to be opened either by its own employe or a stranger, and remain open so as to allow a traveler to pass through. The duty of operating the gates in such a manner as to afford reasonable protection to a traveler upon the highway, who is reasonably careful himself, rests with the railroad company; and when the gate is open, and the traveler passes through upon the track, and is injured, it is a question of fact for the jury to determine whether or not the act of allowing the gate to be open—whether opened by defendant or a stranger—is negligence on the part of the company. It is quite true, as contended by the appellant, that “unless there is something in the proof, taken as a whole, which, if believed by the jury, would establish a failure on the defendant’s part to perform a legal duty, or to use reasonable care and prudence in what it did, the case should not be submitted to the jury.” Heaney v. Railroad Co., 112 N. Y. 126, 19 N. E. Rep. 422. But I think it cannot be held as a matter of law that permitting the gate to be opened even by a stranger, and to remain open long enough for a traveler upon the highway to pass through, is not such an act or omission ;by ibhe company as to justify its submission to the jury upon the question of the negligence of the defendant. In Grippen v. Railroad Co., 40 N. Y. 47,.the court, in discussing the question of evidence of negligence to be submitted to the jury, says: “Where the facts are themselves in dispute, or upon the proof their wisdom or efficiency is doubtful, the jury must decide whether negligence was proved. ” The gate being under the charge, superintendence, and management of the defendant, we think it was for the jury to say whether leaving it open in the manner indicated by the witness was or was not negligence. It is quite true, as contended by the appellant, that the burden is upon the plaintiff, in this class of eases-, to establish the negligence of the defendant, which either directly or proximately caused or contributed to the injury complained of, and that the charge of negligence cannot be supported by mere conjecture or surmise, but must be pro ye<’. either by direct evidence or by facts from which the inference of neglige:: e can be legitimately-drawn, (Dobbins v. Brown, 119 N. Y. 193, 23 N. E. Re. 537;) and that this class of actions stands upon a different footing from than governing actions by passengers against carriers of passengers or owners of goods against common carriers, in which cases a contractile relation' exists, which is deemed broken by an injury or loss to the person, or owner of the goods carried. Nitro-Glycerine Case, 15 Wall. 536. In this case, as we have seen, negligence must be proved by the plaintiff by evidence of negligent acts nr omissions; in the other, proof of the injury usually established a prima farde case.
But the appellant insists that the trial judge should have nonsuited the plaintiff on. the motion of the defendant, on the ground that the plaintiff’s intestate was guilty of contributory negligence in driving upon the railroad track while the opposite gate was closed, and in not looking to the right and left, as he was required to do, in going upon such dangerous ground *181as a railroad crossing; and insists that if he had looked he could have seen the approaching train in time to have avoided the collision. Upon this question also the plaintiff has the affirmative, and - must assume the burden of proving to the satisfaction of the jury, by evidence tending to establish that fact, that his intestate was guilty of no negligence which contributed to the injury; and the rule upon this subject is well stated in Tolman v. Railroad Co., 98 N. Y. 202, as follows: “The burden is upon the plaintiff of showing affirmatively, either by direct evidence or by the drift of surrounding circumstances, that the deceased was himself without fault, and approached the crossing with prudence and care, and with senses alert to the possibility of approaching danger. He must look and listen, and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing. ” Upon this branch of the case we think it was proper for the jury to consider the fact that deceased found this gate open, and to consider that as an element bearing upon the question of his negligence; and the discussion of that question upon the other branch of the case applies with equal force here. The jury might well consider whether, when deceased found the gate open, he might not prudently have regarded it as some degree of assurance that no train, while the gate was in that position, would pass across or upon the limits of the public street. In Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. Rep. 678,—a case in some respects similar to this,— the company had provided a gate on either side of the track, to be shut when engines or trains were passing, and opened at other times. Plaintiff’s intestate, finding the gate open, attempted to cross, and was struck by a locomotive, and killed. ' Daneobth, J., in delivering the opinion of the court of appeals affirming the judgment of the general term sustaining a verdict for the plaintiff, uses this language: “The defendant, for the better protection of life, and to promote the safer and better management of its road, either of its own volition or under the command of law, (Laws 1884, c. 439, § 3,) had erected gates across Walnut street on either side of the track, and had stationed a person there to open or close such gates when an engine or train passed. The duty of the company was imperative; and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous; that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe;” and he adds: “The open gate was an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass.” With this declaration of the law from the highest court, it would seem clearly proper to submit it as a question of fact to the jury, whether, from all the evidence, the deceased was chargeable with contributory negligence.
It is urged by the appellant that the brakeman on the rear car, as the train was backed towards the street, was first to reach the street, saw deceased as he approached the track, and signaled him to stop; but the evidence shows also that there were intervening box-cars, and, while the person standing upon the approaching car could see deceased and his wagon, yet there is no positive evidence that deceased, seated as he was in his covered carriage, could see any portion of the approaching train. At least the question was involved in so much doubt upon that subject that we think it presented a proper one for the jury. It is also urged by the appellant that the fact that the opposite gate was closed was notice to the deceased that the way was obstructed; but, when taken in connection with the fact that the street at this point was 143 feet wide, and that the gates, although operated by the same gateman, were moved by different cranks or levers, it was for the jury to say whether the deceased had not reasonable grounds for supposing that the opposite gate would be opened when reached by him. On the whole, we think *182the facts justified the submission of the question of contributory negligence to the jury as one of fact. The jury in this case having found in favor of the plaintiff upon both the questions of defendant’s negligence and the plaintiff’s want of contributory negligence upon evidence on which they might so find, the judgment upon their verdict must be sustained, unless some error in the admission or rejection of evidence, or in charging the jury, was committed by the trial judge.
It is urged by the appellant that the ordinance of the common council of the city of Schenectady, prescribing rules and regulations for running cars across any of the streets in the city of Schenectady, was im properly offered and received in evidence on the trial. Section 10, tit. 3, c. 385, Laws 1862, confers upon the common council of cities the power to regulate the speed of railroad cars upon railroads within their respective cities, and make various other rules in reference to the operations of railroads in the same. Under this power the common council of Schenectady, on the 12th of January, 1883, adopted the following ordinance: “It shall not be lawful for any railroad corporation, its agents, servants, or employes, or any person or persons in charge of a train, caboose, or cars, to cause the same to be drawn, kicked, or backed over or across any of the streets of the city of Schenectady within the compact part of the city, unless they shall cause a person of mature and suitable age to pass in advance of said train or caboose, so moving and backing within the compact part of said city referred to, for the purpose of giving warning to persons of the approach of such cars or caboose; and such cars, when so moving backwards, shall not be moved or backed at a greater rate of speed than two miles an hour.” The introduction of this ordinance was objected to on the ground that it was inconsistent with the provisions of chapter 242, Laws 1889. This provides that in cities of less than 5Q.000 population it shall not be lawful for the common council to restrict the rate of speed of railroad cars to less than 30 miles an hour when gates are established, and persons furnished to attend the same. It will be seen that the restriction in terms applies only to cities of 50,000 or upward, but there is no proof that Schenectady is a city of less than 50,000 inhabitants, nor was the objection specifically put on the ground that its population was less than that number; and we fail to see that the introduction of this ordinance was an error for which the judgment should be reversed. Besides, this act was not in force when the injury was done. Several exceptions were taken to the charge of the learned judge, and to his refusals to charge in the case; but we have carefully examined them and the authorities cited by the learned counsel, and find in them no grounds of error for which this judgment should be reversed. The judgment should be affirmed, with costs.
All concur.