(dissenting.) The special term was of the opinion that, if the defendant owed the plaintiffs the duty of maintaining the crossing where the accident occurred in a safe condition for use, the verdict was justified by the evidence, but held that it did not. The learned presiding justice in his opinion seems to assume that the only question in the case is whether the defendant owed the plaintiffs any such duty, and holds with the special term that no such duty rested upon the defendant. In this conclusion I cannot concur. The defendant’s railroad was laid in a public highway. It is true, the railroad company purchased the interest of the plank-road company therein. But it was not closed as a highway, but kept open, used by the public, and worked as such by the persons living along the same. The plaintiffs’ servant and team were, therefore, properly there, and not trespassers in passing over it. But it is said that the injury occurred while the servant and team were crossing the railroad attempting to reach a place of safety while the train should pass, and hence they were trespassers. I cannot think so. They were still in the highway, and it seems to me that the danger was such as to fully justify the servant in crossing at this point to escape it, and that he was not a trespasser in doing so. In Spooner v. Railroad Co., 115 N. Y. 22, 21 N. E. Rep. 696, where the plaintiff came to the defendant’s track to see a train pass, found some small children playing about the rails, told them to get off the track, and, they not heeding her, she stepped upon it, to make them get out of the way, and her foot was caught between the plank and rail, and she injured by an approaching train, it was held that she was not a trespasser, and not chargeable with negligence in thus going upon the track. See, also, Eckert v. Railroad Co., 43 N. Y. 502. In Rexter v. Starin, 73 N. Y. 602, *584it was held that it is the duty, as well as the right, of a pérson whose property is endangered by the negligence of another, to do what he can to save and protect it; and therefore, if while exercising such care he is injured, the person guilty of negligence is liable. I think the principle of those cases should be applied here. • The defendant had laid its railroad along a public highway, which was kept open, used, and worked as such. At the point where the injury occurred it was narrow, with a deep ditch on one side, and the railroad upon the other. It was dangerous to a person driving along it, especially if driving a team that was afraid of the cars. The plaintiffs’ team was afraid of the cars, and their servant sought to reach a place of safety by attempting to cross the track over this crossing onto the premises of an adjoining owner. That, under the circumstances, it was proper for him to do so, and that in so doing he was properly using the crossing at that point, and was not a trespasser, so that the defendant owed him no duty, seems to me quite clear. If the order in this case can be sustained, I think it must be sustained on the ground that the proof showed conclusively that the cause of the accident was the projection of a spike above the surface of the tie into which it was driven, and that there was no evidence to justify a jury in finding that the defendant had either actual or constructive notice of its projection, and no evidence to justify it in finding that there was any defect in the original construction of the crossing that caused the injury complained of.