[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 203
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 204 Upon the evidence which the plaintiff adduced in support of her complaint, that the death of her intestate was caused by the negligence of the defendant, I think that she was properly non-suited. The facts very clearly showed that there was nothing done, or omitted to be done, on the part of the defendant to charge it with negligence; unless it be with reference to the act of Bentley, the gatetender, or with reference to the locomotive and train of cars standing by the station. If we consider, in the first place, what was done by the gatetender, we see him acting in the exercise of his judgment, in letting the deceased first pass under the gate to cross the railroad tracks. He was probably observant of the restless and unmanageable conduct of Priester's horse and, therefore, did not at the time raise the gate high enough to let the horse and wagon also through. But when the woman had passed by the cowcatcher of the engine, which was standing partly upon the street crossing, he then, and not till then, allowed the horse and wagon also to pass through the gates. The gatetender's conduct was not influenced by any fear of danger from passing trains; but, evidently enough, by a desire to prevent an accident to the woman from the restless horse. Obviously, when the woman had got by the engine, that danger would, in the ordinary exercise of human judgment, cease; and that would have been the fact here, if, after passing the engine, she had kept either upon her side of the street crossing, or, if she wanted to cross the street, she had first looked to see if any danger was imminent. But she did not do this. Instead of keeping to the north side of the crossing, after passing the engine, she crossed diagonally over *Page 207 the highway and with so little regard to what she was doing, as to pay no attention to Priester's horse, although he hallooed to her twice. It is clear from the evidence that at the time when she was struck, she was so far beyond the gates she had entered and the railroad train standing on the east track, as to have been able to remain in, or to reach, a place of safety. I think, under such circumstances, it is impossible to predicate any negligence upon what the gatetender did. He was not bound to do more than to take reasonable precautions against the occurrence of accidents to those passing over the highway through the railroad enclosure. Whatever peril existed, whether from the presence of the locomotive, or from the restive horse, was quite as obvious to the deceased as to the gatetender and, if we may assume that he committed any error, it was at most an error of judgment for which the defendant could not be made liable.
Nor was the deceased freed from the obligation to be herself vigilant, when making use of the highway crossing. She was as much bound to be vigilant in the use of her senses upon that part of the highway, as upon any other part. The open gate, through which she was permitted to enter by the gateman, was an affirmance of safety from the danger of any passing train. It did not dispense with the necessity of her being as vigilant, when upon the crossing in the railroad enclosure, as upon the ordinary highway. (Palmer v. Railroad Co., 112 N.Y. 234; Rodrian v.Railroad Co., 125 id. 526.) I am, therefore, unable to discover wherein the defendant may be deemed to have been in any wise negligent and responsible for what occurred to the deceased, because of any act of commission or omission on the part of the gatetender.
Considering, in the next place, the situation of the train at the station, waiting to go south with its load of passengers; what was there in that fact upon which negligence in the defendant can be predicated? In the opinions of the two General Term justices, who concurred in the ordering of a new trial, "the very position of this engine in the public highway, and the occupation and blocking up of said highway *Page 208 by it, was of itself an act of negligence." This extraordinary view they based, or rather felt constrained to take, upon the authority of Borst v. Railroad Co. (4 Hun, 346). In that case the locomotive and train were in the public highway and the plaintiff's horse, while passing along the street, was frightened and shied, so as to run against a wagon and throw out and injure the plaintiff. In that case, the plaintiff claimed that the steam from the defendant's engine blew out more, while he was crossing the track, than it did when he was signaled by the flagman to do so; and the question which the General Term passed upon was the correctness of the refusal of the trial justice to charge, "that if the jury should find that there was any additional noise coming from the engine, after the plaintiff started to cross the track, that unless that increase of noise was caused by the negligence of the defendant or its servants, the defendant was not liable therefor in this action, although such noise frightened plaintiff's horse, and contributed to this injury." It seems that the trial justice explained, in refusing the request, that when the flagman beckoned the passenger, who was waiting in the highway, to cross the track, he had "a right to suppose that no change will take place in anything under the control of the railroad company, likely to increase the danger." This explanation was deemed to be sufficiently correct and the General Term said: "If more steam was emitted from the engine while he was passing than before, that was an unfair surprise to the plaintiff, and if it contributed to the injury, it was the fault of the defendant's agents, for which the defendant was responsible." That is by no means this case. In the first place, we are not informed from the record in that case whether the escape of steam was, as here, the necessary result of a mechanical device upon the locomotive; and, in the next place, there was a sudden increase of the noise from escaping steam at the time the plaintiff passed. In the present case, there was no change in the conditions, which existed while Priester was waiting to pass through the gates and the conditions which existed when he passed the locomotive. *Page 209 The escape of steam was from an automatic safety valve, which, when the engine is standing, prevents the dangerous accumulation of steam, by letting it off when the pressure reaches a certain point. It cannot, of course, be pretended that the use of such a device, adopted for protection from danger and which acts mechanically and not under the control of the engineer, is negligence. Another distinction between the Borst case and the present one, not altogether unimportant to be noticed, is that the recovery there was sought for by a party who was injured by the frightening of his horse and was based upon, as I have before mentioned, a change of conditions from the time when the flagman invited him to cross the tracks and the time when, passing the engine, there was a sudden increase of noise.
Nor can it reasonably be said that the position of the locomotive in the public highway was an act of negligence, which renders this defendant responsible for what happened here. The position of the locomotive had nothing whatever to do with the accident to the woman. She was some distance beyond the locomotive and in a place of perfect safety, as to any danger from a passing vehicle, if she had chosen to look out for its approach. Whether the locomotive stood upon the highway to any extent was a circumstance, which had no possible connection with what happened to the woman. If Priester's horse was so frightened by the escaping steam as to get beyond his control, precisely the same result would have happened if the engine had been fifty or more feet back from where it was. Either we must say that the woman should not have been allowed to pass through the gates, while Priester was waiting to pass with his restive horse, which would be absurd; or we must say that the gate tender, out of an individual consideration of the facts under his observation, used his best judgment, when he allowed the woman to pass under the gates first and then, seeing her beyond the projecting locomotive and, presumably, in a place of safety, raised the gates higher for Priester to pass through with his horse and wagon. *Page 210
Without further discussion of the case, I am of the opinion that the plaintiff was properly non-suited. The facts in evidence, as they group themselves in the mind, make it clear that the plaintiff's intestate received the injuries, from which she died, by reason of an occurrence, for which the defendant is not in anywise responsible, viz.: the breaking away of Priester's horse from his control. Priester had a perfect right to pass over the crossing. There was no train passing, or expected to pass, at the time; and the deceased, in crossing diagonally over the highway, without apparently looking about her, assumed all the hazards.
The order of the General Term should be reversed and the judgment of the Circuit Court affirmed, with costs.
All concur.
Order reversed and judgment affirmed.