The court had charged the jury fully as to its duties in the premises, and, at its close, counsel for the plaintiff asked that the jury be instructed that:
“If tlie engineer saw the deceased was in danger of being run into when he reached the crossing, provided the speed of his engine was not checked, it was his duty to do all reasonably within his power to prevent the disaster by proper efforts to stop his train as soon as he could.”
This was duly excepted to on behalf of the defendant, but the court so charged. It was in evidence that the engineer of the train saw plaintiff’s intestate when the engine was 500 feet from the crossing, and that the deceased was then approaching the track with the evident intention of crossing; and for the court to charge, as a matter of law, that the defendant’s engineer was bound to assume that plaintiff’s intestate would continue on his way, thus inviting: the disaster, is clearly erroneous. The engineer is not hound to stop his engine every time he sees a team approaching a grade crossing. He has a right to assume, the team being under control, that the driver will stop in time to avoid the danger; and it is only when the situation is such that the driver of the team, in the exercise of reasonable care, will not be able to protect himself, that the duty is imposed upon the defendant to bring its train to a standstill.
•‘An engineer is not bound to stop his train,” say the court in the case of Chrystal v. Railroad Co., 105 N. Y. 164, 170, 11 N. E. 382, “the moment he sees some living object on the track. He has the right, in broad daylight, when his train is perfectly visible, and its approach must he heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape, injury. * * * Reasonable care in ilie management of trains which must make their time between stations, and have the right of way, does not require more. * * * All the engineer was hound to do after the discovery of the peril was to use reasonable diligence and care to avert it.”
In other words, the railroad having the paramount right at crossings, the engineer has the right to assume, in the absence of special circumstances, that persons approaching the crossing will stop in time to avoid collision; and he is charged with no higher duty than the exercise of reasonable care in the management of his train to avoid collisions at crossings; and the charge of the trial court, under the circumstances of this case, was error. Her is this error-cured by the further charge of the court, at the request of defendant’s counsel, that “the engineer of the train was justified in assuming. if his locomotive was in sight, and the horse was under control, that an attempt would not be made to pass in front of the locomolive”; and that “the engineer was also justified in assuming that, if the plaintiff’s intestate could have seen or heard the train in time to remain in a place of safety, he would have remained there.”' These additional propositions were made without withdrawing the *966one which had already been made to the jury with the approval of the court; and there were thus before them two statements of the law, diametrically opposed, and the jury was left to guess which, if either, of the rules of law, was correct, rather than to determine the question of negligence or lack of contributory negligence on the part of the parties to the action.
As was said by the court in the case of Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978:
“Erroneous instructions can be effectually cured only by their withdrawal in terms so explicit and unequivocal as to preclude the inference that the jury may have been influenced by them.”
In the case of Chapman v. Railroad Co., 55 N. Y. 579, the court charged the jury:
“But if, after a competent and proper person is employed for such a duty, if his habits become such that it is unsafe to trust him any longer in that capacity, the company are bound to use, through their proper officers, such reasonable care and diligence in ascertaining what the man is, after he is employed, as they would be in his original employment.”
On appeal, after pointing out the obvious error of this rule, the court say:
“It is not quite clear, from the whole charge, how far the learned judge intended to go in the direction indicated. During a colloquy between the judge and the counsel upon the point, the former used language tending partially to qualify the import of that quoted; but this portion of the charge was not withdrawn, and the jury might have acted upon it. To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.”
It is clear, then, that the instruction given to the jury at the request of the plaintiffs counsel, being erroneous, was not cured by the subsequent charge of the court at the request of defendant’s counsel. Kelly v. Railroad Co., 25 App. Div. 603, 607, 50 N. Y. Supp. 426.
The judgment should be reversed, and a new trial granted; costs to abide the event.
GOODBIOH, P. J., concurs.