Hatch, J.:
This case upon its facts presents the single question whether the deceased, in the exercise of reasonable care, was bound to take some measure of precaution, by looking and listening before he attempted to cross the track, upon the walk which carried him to the platform where he usually took the train that ran him down; or whether he might rely upon an assurance of safety, by reason of the conditions which the defendant had created and which had uniformly been acted upon prior to the accident.
The evidence warranted the jury in drawing an inference that the defendant was guilty of negligence in operating the train over the track where the deceased was injured. His contributory negligence, therefore, is the only question. Upon the evidence the jury were authorized to find that the usual place where the deceased took this train—indeed, there is no evidence that he ever took it at any other place—was from the south platform upon the south track. The testimony of the switchman authorized the jury to find that this train had been run in upon this south track for a period of twelve or thirteen years. During this time, he says, he-had never known it to run upon the north track except upon the morning of the accident. One passenger thought it had come in once or twice upon the north track in about two months before the accident. An examination of the testimony of this witness shows that his recollection upon this subject is quite vague. There is nothing to indicate that the deceased had ever taken it from the north track.
As I view the case, therefore, the jury were authorized to find that it was the uniform custom for the defendant, in the operation of this train, to run it on the south track, by the side of the south platform, and that the passengers came from the station upon the north side, crossed the north track in a space planked by the defendant for the purpose of furnishing a walk, and so reached the south platform and boarded the train.
There is no claim that any other train was run upon the north track, or upon any other track at the time when this train was switched in and when it left the depot. It is stated that many [294]*294trains run upon all of these tracks during the day, but it is not stated, nor was it claimed, that any other train ran into this station at the time when the Brooklyn train came in and left the station. We are to consider this case, therefore, as presenting this condition: The uniform custom, established for many years, in the running of this train, was for the train to switch in upon the south track, the station master announced its approach to the passengers in the station, the passengers came therefrom, crossed the station platform about fourteen feet, then over the plank walk across the north track, and took the train. This was the uniform custom, except, possibly, on one or two occasions when this train ran in upon the north track; at other times no train had run there at this hour.
Under these circumstances, was the deceased justified in acting upon the assumptioil that it was safe for him to travel over this space without looking and listening for trains thereon ? I think the jury might say that he was, and that it cannot be affirmed as matter of law that he was guilty of contributory negligence in so acting. The care which a person is called upon to exercise is always relative, having regard to the danger to be encountered and the circumstances by which the person is surrounded. What should be the act of a person exercising reasonable care under given circumstances is the test, and is usually a question of fact. What a great many persons do under the same circumstances is fairly for the jury to consider in characterizing the act. Upon this morning, when this accident happened, it was not yet light and was very cold. The passengers were assembled in the waiting room to take this train, which was two or three minutes late; the station master opened the station door and announced the train; the notice was the usual notice; . there was no warning that the train was upon the north track which the passengers uniformly crossed; the deceased left the station in • the lead, and it is evident that the natural impulse was, as contact with the cold was had, to seek shelter in the car as quickly as possible. The deceased passed over the usual way; the other passengers ■ followed at his heels; he reached about the center of the track and was struck; another passenger, following, barely escaped, and others were close when the train interposed. It is true that some saw the train, but it is also clear that some would have walked over the-same space that the deceased did had not the train interposed. If [295]*295a number of persons, possessed of the same information which the deceased had of the surroundings, acted in a manner similar to the way in which he did, under the same circumstances, it would seem to authorize an inference of the exercise of prudence and care commensurate with the supposed surroundings upon which the deceased had the right to rely. What was there to induce a belief that the train was upon the north track? It had rarely, if ever, been there before; the defendant gave no notice of any change ; it had created the custom which lulled the deceased and the other passengers into a sense of security, and it also created the condition which ran this train over the track, when it knew the passengers were in the habit of crossing with a sense of security. Having created both conditions, the defendant cannot, in reason, ask for the observance of any very strict act of circumspection on the part of the persons it invited into this environment.
It is said that the headlight was lighted, that the bell was rung, and the train made a noise. The evidence may satisfy the claim or the reverse. One passenger said that the headlight burned bright, but did not recollect that the bell rang; the other did not recollect that the lamp was lighted, but did recollect that the bell rang. Suppose either or both or all these conditions existed, were they calculated to arrest the attention of the deceased, and ought he to have seen them or looked for them? If the train had run in upon its usual track, it would make a noise, the bell could be heard and the light seen. These tracks were in close proximity, and all of the usual "appliances for warning of the approach of the train would be as full and complete upon the one track as the other. It is not to be assumed that the train was always at the platform at rest when the passengers left the station to reach it; on the contrary, it is fair to assume that the train was announced while running into the station, and that it was or might well be in motion when the passengers left the station. There would be as much noise then as there was at the time in question, and it would come from practically the same direction, and be of the same character.
It would seem that a jury would be authorized to say that there was nothing in all of these surroundings, assuming them all to have existed, which would tend to arrest the attention of a passenger by reason of the train being upon the north rather than upon the south [296]*296track. I am unable to see any difference in principle between a case where a train upon one track is run through passengers crossing the track to take a train upon another and the circumstances surrounding this case.
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Hatch, J.:
This case upon its facts presents the single question whether the deceased, in the exercise of reasonable care, was bound to take some measure of precaution, by looking and listening before he attempted to cross the track, upon the walk which carried him to the platform where he usually took the train that ran him down; or whether he might rely upon an assurance of safety, by reason of the conditions which the defendant had created and which had uniformly been acted upon prior to the accident.
The evidence warranted the jury in drawing an inference that the defendant was guilty of negligence in operating the train over the track where the deceased was injured. His contributory negligence, therefore, is the only question. Upon the evidence the jury were authorized to find that the usual place where the deceased took this train—indeed, there is no evidence that he ever took it at any other place—was from the south platform upon the south track. The testimony of the switchman authorized the jury to find that this train had been run in upon this south track for a period of twelve or thirteen years. During this time, he says, he-had never known it to run upon the north track except upon the morning of the accident. One passenger thought it had come in once or twice upon the north track in about two months before the accident. An examination of the testimony of this witness shows that his recollection upon this subject is quite vague. There is nothing to indicate that the deceased had ever taken it from the north track.
As I view the case, therefore, the jury were authorized to find that it was the uniform custom for the defendant, in the operation of this train, to run it on the south track, by the side of the south platform, and that the passengers came from the station upon the north side, crossed the north track in a space planked by the defendant for the purpose of furnishing a walk, and so reached the south platform and boarded the train.
There is no claim that any other train was run upon the north track, or upon any other track at the time when this train was switched in and when it left the depot. It is stated that many [294]*294trains run upon all of these tracks during the day, but it is not stated, nor was it claimed, that any other train ran into this station at the time when the Brooklyn train came in and left the station. We are to consider this case, therefore, as presenting this condition: The uniform custom, established for many years, in the running of this train, was for the train to switch in upon the south track, the station master announced its approach to the passengers in the station, the passengers came therefrom, crossed the station platform about fourteen feet, then over the plank walk across the north track, and took the train. This was the uniform custom, except, possibly, on one or two occasions when this train ran in upon the north track; at other times no train had run there at this hour.
Under these circumstances, was the deceased justified in acting upon the assumptioil that it was safe for him to travel over this space without looking and listening for trains thereon ? I think the jury might say that he was, and that it cannot be affirmed as matter of law that he was guilty of contributory negligence in so acting. The care which a person is called upon to exercise is always relative, having regard to the danger to be encountered and the circumstances by which the person is surrounded. What should be the act of a person exercising reasonable care under given circumstances is the test, and is usually a question of fact. What a great many persons do under the same circumstances is fairly for the jury to consider in characterizing the act. Upon this morning, when this accident happened, it was not yet light and was very cold. The passengers were assembled in the waiting room to take this train, which was two or three minutes late; the station master opened the station door and announced the train; the notice was the usual notice; . there was no warning that the train was upon the north track which the passengers uniformly crossed; the deceased left the station in • the lead, and it is evident that the natural impulse was, as contact with the cold was had, to seek shelter in the car as quickly as possible. The deceased passed over the usual way; the other passengers ■ followed at his heels; he reached about the center of the track and was struck; another passenger, following, barely escaped, and others were close when the train interposed. It is true that some saw the train, but it is also clear that some would have walked over the-same space that the deceased did had not the train interposed. If [295]*295a number of persons, possessed of the same information which the deceased had of the surroundings, acted in a manner similar to the way in which he did, under the same circumstances, it would seem to authorize an inference of the exercise of prudence and care commensurate with the supposed surroundings upon which the deceased had the right to rely. What was there to induce a belief that the train was upon the north track? It had rarely, if ever, been there before; the defendant gave no notice of any change ; it had created the custom which lulled the deceased and the other passengers into a sense of security, and it also created the condition which ran this train over the track, when it knew the passengers were in the habit of crossing with a sense of security. Having created both conditions, the defendant cannot, in reason, ask for the observance of any very strict act of circumspection on the part of the persons it invited into this environment.
It is said that the headlight was lighted, that the bell was rung, and the train made a noise. The evidence may satisfy the claim or the reverse. One passenger said that the headlight burned bright, but did not recollect that the bell rang; the other did not recollect that the lamp was lighted, but did recollect that the bell rang. Suppose either or both or all these conditions existed, were they calculated to arrest the attention of the deceased, and ought he to have seen them or looked for them? If the train had run in upon its usual track, it would make a noise, the bell could be heard and the light seen. These tracks were in close proximity, and all of the usual "appliances for warning of the approach of the train would be as full and complete upon the one track as the other. It is not to be assumed that the train was always at the platform at rest when the passengers left the station to reach it; on the contrary, it is fair to assume that the train was announced while running into the station, and that it was or might well be in motion when the passengers left the station. There would be as much noise then as there was at the time in question, and it would come from practically the same direction, and be of the same character.
It would seem that a jury would be authorized to say that there was nothing in all of these surroundings, assuming them all to have existed, which would tend to arrest the attention of a passenger by reason of the train being upon the north rather than upon the south [296]*296track. I am unable to see any difference in principle between a case where a train upon one track is run through passengers crossing the track to take a train upon another and the circumstances surrounding this case. In both there is the invitation to act in a certain manner and follow a usual course for the purpose of transportation ; and in both the danger is from an unexpected source, easily discoverable by the use of the faculties of hearing and seeing, but the existence of which, I think, there was in neither case reason to expect. In the former case, while the intending passenger must exercise reasonable care, yet, where the conditions are of. the defendant’s creation, they authorize the assumption that it will not expose the passenger to unnecessary danger; and-this assumption may be considered as naturally tending to'diminish care and watchfulness, and thus furnish a case where the jury alone are qualified to characterize the act. (Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id. 241.)
In the present case it would seem that the same reasons exist for the application of the same rule.
“ In general, it may be imprudent to enter upon a track while a locomotive is approaching. Whether it is so in a particular case must depend upon the circumstances under which the attempt to cross is made. And where, though in fact it may be hazardous, a traveler does so in consequence of the acts of the defendant, he cannot be charged with negligence unless the risk or danger was apparent.” (Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234, 244.)
“ The question is whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” (Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355, 364.)
“ The rule which requires a traveler on a highway which crosses a railroad to look and listen for approaching trains is not applicable to persons who are crossing a track on a walk of the railroad at a station for the purpose of going to the station to become passengers.” (Warfield v. N. Y., L. E. & W. R. R. Co., 8 App. Div. 479.)
[297]*297Within these authorities I think that this case presented a question of fact for the jury -and that it was error to dismiss the complaint.
Much stress is laid upon the fact that it was conceded that the passengers who looked could determine that the train was approaching upon the north track. Why this concession should have been made by the plaintiff is one of the incomprehensible things in this case. It does not need much consideration of the circumstances, the relation of the tracks to each other, and the impaired light to see that it may have been quite difficult to so determine until the train was very close. One witness testified that he could tell, and another testified that he could not; then followed the admission. Giving to this admission the full force claimed for it, I do not think it changes the question. If the deceased was lulled into a sense of security by the custom which the defendant had established •— and I think the evidence would authorize such a finding — then I think he might assume that the defendant would not change the condition and run a train over him. In the absence of notice of the change, I think he might rely upon a continuance of the custom, and that the defendant could make no departure therefrom without notice, except at his peril. Whether the deceased exercised reasonable care became a question for the jury.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
All concurred, except Cullen, J., who read for affirmance, with whom Goodrich, P. J., concurred.