(dissenting). I think that it was error to submit to the jury the issue of whether the defendant should have maintained a flagman or gate at this crossing. The plaintiff argues that, even if there be no such duty to wayfarers, there is one to passengers, since the standard of care is severer. Just the opposite is true, not, of course, because the duty to passengers is not in general more strict, but because the danger is far less probable. I do not, of course, know how often a train is derailed by a wagon, or a motor ear, or indeed whether this case is not unique. But we have the right, I think, to draw on our experience to say that in the enormous majority of eases, where there is a collision, the train escapes. If derailment be a danger against which the highest foresight should provide^ it ought to have been proved. Prima facie we do not know it, and the jury had no right to assume it. The ease was submitted as though the danger to passengers was on á footing with the danger to persons crossing, which appears to me a very serious confusion of a railroad’s duty in such eases.
But I go further, and think that even towards wayfarers the defendant owed no duty to maintain a flagman at the crossing. Concededly the rule in New York is otherwise, and to hold the defendant we must proceed under federal decisions. I agree that we should do so, because this is a piece of the customary law of New York, and not of its *89statutes. The New York cases might, indeed, have made it depend upon the exclusive control over all such matters of the Public Service Commission of that state, but they have not. It was established by precedent before there was any such statute, and, moreover, in New York compliance with a statutory precaution does not absolve a railroad from its common-law duties.
But I say that under the federal eases this was not such a crossing that a jury might require for it a flagman or a gate. The first decision is Grand Trunk R. Co. v. Ives, 144 U. S. 409, 12 S. Ct. 679, 36 L. Ed. 485, which has been reaffirmed in Panama R. Co. v. Pigott, 254 U. S. 552, 41 S. Ct. 199, 65 L. Ed. 400, and followed in Evans v. Erie R. Co., 213 F. 129, 129 C. C. A. 375 (C. C. A. 6), and Murphy v. Penn. R. Co., 1 F.(2d) 929 (C. C. A. 6). The doctrine is not that a jury may pass upon the issue in every ease, but only when the crossing is more than “ordinarily hazardous.” The illustrations given in Grand Trunk R. Co. v. Ives, supra, are indeed not intended to be exhaustive, though perhaps they have been taken as such; but in no view do I think that the facts here fall within either the principle or the illustrations.
The travel was not unusual; 400 motors a day is by no means great to-day. People coming from Leroy to the station did not use the crossing; a highway to the east was the more used thoroughfare. Nor was the view obstructed in any sense that is not true of half the highways in any countryside. Nothing obscured it at all, except a snow fence, between the boards of which a train may be clearly seen, as the' plaintiff’s own photographs disclose. Until one gets within 100 feet of the track, even that fence leaves the whole length of track to the west plainly visible, except for a short distance, about the space of two telegraph poles. If such a crossing is to be treated as within the rule, I can see no escape from saying that a jury may impose such a duty in all cases where there is the slightest obstruction to a clear view both ways. I do not believe that Grand Trunk R. Co. v. Ives, supra, meant that.
In general, it seems to me most undesir'abl'e, in a period when the duties of carriers are being more and more defined by expert commissions, to expose them, when we can honestly avoid it, to the vagaries of juries, who are obviously incompetent to consider all the elements which should enter into any adequate judgment.