Van Kirk, P. J.
Plaintiff has a judgment in a negligence
action. Defendant asks a reversal solely upon the ground of contributory negligence. As to all disputed facts we take plaintiff’s version.
While driving over a grade crossing of defendant’s tracks plaintiff’s automobile and a train came into collision; plaintiff received serious injuries. The time was about seven a. m., of a clear, bright June day. The plaintiff was driving easterly on a private road; the train came from the south. The private road leads from a highway west of the crossing to a manufacturing plant a half mile east thereof. When about 125 feet from the tracks this private road turns from a northerly to an easterly direction and runs thence in a straight course to and over the grade crossing. The surface of the road was dirt, dressed over with crushed stone, and on this morning was dry. From the curve just mentioned there is a down grade toward the crossing, varying from eight per cent to five per cent; as one approaches the tracks the grade diminishes. There was no noticeable irregularity or roughness in the surface of the road or of the crossing, nor was there any other passing vehicle, or sound, or thing, to divert his attention, or anything to cause him to hasten on his way. He approached the crossing undisturbed and with his attention undiverted. The photographs taken two days after the accident, defendant’s Exhibits E and G, show the crossing from opposite directions.
The railroad fine consisted at the crossing of three separate tracks, with the usual spaces between. As one approached from the west, he first came to a side track, then to the south-bound track, then to the north-bound track on which plaintiff was injured. The distance from the westerly rail of the north-bound track to the westerly rail of the side track is twenty-five feet. In either direction from the crossing the tracks are straight and of level grade to the north about 1,000 feet and to the south more than one mile.
After one left the highway and traveled toward the crossing on the private road there were places where the view of the railroad tracks in either direction was open and other places where it was obstructed. The condition essential to the determination here is that existing between the above-mentioned, curve and the crossing. Within this curve and to the south was a bunk house which obstructed the view. Having passed this, for a short space one could see the tracks in both directions, but thenceforward, for a distance of seventy feet or more, the side of a cut entirely shut off the view to the south.
With the conditions and surroundings above described the [207]*207plaintiff approached this crossing. The crossing and the surface of the roadway on either side of the crossing were in his plain view. As he went down the grade he slowed from fifteen miles an hour to twelve or thirteen; he heard no bell and no whistle; he could not see the tracks to the south until he had reached the foot of the grade, a point about five or six feet from the west rail of the side track. From that point for thirty feet he had an open, unobstructed view of the tracks in each direction. When at this point, this train, coming from the south, was in plain view. At the highest rate of speed estimated, sixty miles per hour, the train went but five times as fast as plaintiff. Plaintiff says that at this point he looked in both directions and saw no train; yet this train was then within two hundred feet.from him. There is no complaint that his eyesight was not good. Had he looked he must have seen. There were warnings as he approached the crossing, but he needed none. He was familiar with it; he had been working at the cement plant four or five days immediately preceding his accident and passed over this crossing at least twice a day. There is nothing to indicate he was not a man of average intelligence and no excuse of any kind is presented for his failure to see this approaching train and his failure to protect himself from the injury. The rule is that, as one approaches a railroad crossing, of which he has knowledge, he must reduce his speed to a limit which is reasonably safe under the circumstances and conditions and proceed then cautiously and carefully with the vehicle under complete control; and he must employ his senses of hearing and sight to avoid danger. (Horton v. N. Y. Central R. R. Co., 237 N. Y. 38, 47.) If he does not do so, he is guilty of negligence as a matter of law. (Id.; Dolan v. D. & H. Canal Co., 71 N. Y. 285; Avery v. New York, O. & W. R. Co., 205 id. 502, 507.) Every understanding mind knows that a railroad track is a dangerous place. A fast moving, heavy train cannot be stopped quickly to avoid collision when some object suddenly appears on or near the track; it cannot be diverted from its course on the rails. If a man attempts to pass ahead of such a train, when he has not time and space to clear the track, he knows he will be hit. If one, when a considerable distance from a crossing and thence onward until he reaches it, has a continuous unobstructed view of the tracks, he is in a very different position from that of one whose view has been wholly obstructed until he is close to the tracks. The intervals in which plaintiff’s testimony indicates this train could be seen as he passed along this private roadway could give little assurance that a train was or was not approaching. Thus, when he came from behind the obstruction to his view and to a point where he could see clearly, it was his duty to proceed [208]*208slowly enough so that he could deliberately look and assure himself that a train was not then within dangerous proximity. He then had his safety solely in his own hands. It is not suggested that he had any occasion for hurry. It was not necessary for bim to continue going at twelve miles an hour. A delay of one second would have protected him against collision. Whose fault, other than his, occasioned it? On what suspicion from the evidence could a jury say that he had exercised the reasonable care of a man of average intelligence to avoid his injury? The fact that he had heard no signal does not excuse him. He is not only to listen, but to look; and he must look at a time and place when looking will be of service. Hearing is an indifferent guard to safety as one approaches a grade crossing.
We think the rule is well established in this State that when a man, approaching a railroad grade crossing with which he is acquainted, passes from behind an obstruction which has cut off his view of the tracks in either direction from the crossing, he is not at liberty to continue across those tracks into that narrow place of danger without giving himself reasonable opportunity to see whether or not a train is approaching within a distance which threatens a collision. (Keller v. Erie R. R. Co., 183 N. Y. 67; Cassidy v. Fonda, J. & G. R. R. Co., 200 App. Div. 241; affd., 234 N. Y. 599; Barry v. Rutland R. R. Co., 203 App. Div. 287; affd., 236 N. Y. 549; McCullough v. Pennsylvania R. R. Co., 224 id. 541; Barnasky v. N. Y., O. & W. R. Co., 226 id. 435; Raymer v. Rutland R. R. Co., 204 App. Div. 135, 137.) The Federal courts have gone further. (Baltimore & Ohio R. R. Co. v. Goodman, 275 U. S. 66.)
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Van Kirk, P. J.
Plaintiff has a judgment in a negligence
action. Defendant asks a reversal solely upon the ground of contributory negligence. As to all disputed facts we take plaintiff’s version.
While driving over a grade crossing of defendant’s tracks plaintiff’s automobile and a train came into collision; plaintiff received serious injuries. The time was about seven a. m., of a clear, bright June day. The plaintiff was driving easterly on a private road; the train came from the south. The private road leads from a highway west of the crossing to a manufacturing plant a half mile east thereof. When about 125 feet from the tracks this private road turns from a northerly to an easterly direction and runs thence in a straight course to and over the grade crossing. The surface of the road was dirt, dressed over with crushed stone, and on this morning was dry. From the curve just mentioned there is a down grade toward the crossing, varying from eight per cent to five per cent; as one approaches the tracks the grade diminishes. There was no noticeable irregularity or roughness in the surface of the road or of the crossing, nor was there any other passing vehicle, or sound, or thing, to divert his attention, or anything to cause him to hasten on his way. He approached the crossing undisturbed and with his attention undiverted. The photographs taken two days after the accident, defendant’s Exhibits E and G, show the crossing from opposite directions.
The railroad fine consisted at the crossing of three separate tracks, with the usual spaces between. As one approached from the west, he first came to a side track, then to the south-bound track, then to the north-bound track on which plaintiff was injured. The distance from the westerly rail of the north-bound track to the westerly rail of the side track is twenty-five feet. In either direction from the crossing the tracks are straight and of level grade to the north about 1,000 feet and to the south more than one mile.
After one left the highway and traveled toward the crossing on the private road there were places where the view of the railroad tracks in either direction was open and other places where it was obstructed. The condition essential to the determination here is that existing between the above-mentioned, curve and the crossing. Within this curve and to the south was a bunk house which obstructed the view. Having passed this, for a short space one could see the tracks in both directions, but thenceforward, for a distance of seventy feet or more, the side of a cut entirely shut off the view to the south.
With the conditions and surroundings above described the [207]*207plaintiff approached this crossing. The crossing and the surface of the roadway on either side of the crossing were in his plain view. As he went down the grade he slowed from fifteen miles an hour to twelve or thirteen; he heard no bell and no whistle; he could not see the tracks to the south until he had reached the foot of the grade, a point about five or six feet from the west rail of the side track. From that point for thirty feet he had an open, unobstructed view of the tracks in each direction. When at this point, this train, coming from the south, was in plain view. At the highest rate of speed estimated, sixty miles per hour, the train went but five times as fast as plaintiff. Plaintiff says that at this point he looked in both directions and saw no train; yet this train was then within two hundred feet.from him. There is no complaint that his eyesight was not good. Had he looked he must have seen. There were warnings as he approached the crossing, but he needed none. He was familiar with it; he had been working at the cement plant four or five days immediately preceding his accident and passed over this crossing at least twice a day. There is nothing to indicate he was not a man of average intelligence and no excuse of any kind is presented for his failure to see this approaching train and his failure to protect himself from the injury. The rule is that, as one approaches a railroad crossing, of which he has knowledge, he must reduce his speed to a limit which is reasonably safe under the circumstances and conditions and proceed then cautiously and carefully with the vehicle under complete control; and he must employ his senses of hearing and sight to avoid danger. (Horton v. N. Y. Central R. R. Co., 237 N. Y. 38, 47.) If he does not do so, he is guilty of negligence as a matter of law. (Id.; Dolan v. D. & H. Canal Co., 71 N. Y. 285; Avery v. New York, O. & W. R. Co., 205 id. 502, 507.) Every understanding mind knows that a railroad track is a dangerous place. A fast moving, heavy train cannot be stopped quickly to avoid collision when some object suddenly appears on or near the track; it cannot be diverted from its course on the rails. If a man attempts to pass ahead of such a train, when he has not time and space to clear the track, he knows he will be hit. If one, when a considerable distance from a crossing and thence onward until he reaches it, has a continuous unobstructed view of the tracks, he is in a very different position from that of one whose view has been wholly obstructed until he is close to the tracks. The intervals in which plaintiff’s testimony indicates this train could be seen as he passed along this private roadway could give little assurance that a train was or was not approaching. Thus, when he came from behind the obstruction to his view and to a point where he could see clearly, it was his duty to proceed [208]*208slowly enough so that he could deliberately look and assure himself that a train was not then within dangerous proximity. He then had his safety solely in his own hands. It is not suggested that he had any occasion for hurry. It was not necessary for bim to continue going at twelve miles an hour. A delay of one second would have protected him against collision. Whose fault, other than his, occasioned it? On what suspicion from the evidence could a jury say that he had exercised the reasonable care of a man of average intelligence to avoid his injury? The fact that he had heard no signal does not excuse him. He is not only to listen, but to look; and he must look at a time and place when looking will be of service. Hearing is an indifferent guard to safety as one approaches a grade crossing.
We think the rule is well established in this State that when a man, approaching a railroad grade crossing with which he is acquainted, passes from behind an obstruction which has cut off his view of the tracks in either direction from the crossing, he is not at liberty to continue across those tracks into that narrow place of danger without giving himself reasonable opportunity to see whether or not a train is approaching within a distance which threatens a collision. (Keller v. Erie R. R. Co., 183 N. Y. 67; Cassidy v. Fonda, J. & G. R. R. Co., 200 App. Div. 241; affd., 234 N. Y. 599; Barry v. Rutland R. R. Co., 203 App. Div. 287; affd., 236 N. Y. 549; McCullough v. Pennsylvania R. R. Co., 224 id. 541; Barnasky v. N. Y., O. & W. R. Co., 226 id. 435; Raymer v. Rutland R. R. Co., 204 App. Div. 135, 137.) The Federal courts have gone further. (Baltimore & Ohio R. R. Co. v. Goodman, 275 U. S. 66.)
While generally contributory negligence in a grade crossing case presents a question for the jury, the rule governing a nonsuit or dismissal of the complaint is the same as in any negligence case. (We do not refer to the statutory action. Civ. Prac. Act, § 265.) There must be some .evidence to support a finding that plaintiff’s negligence did not contribute to the accident, else there can be no recovery. In the present case plaintiff, having his safety completely in his own control, left his place of safety and, without using the precautions which the rules require and ordinary prudence suggests, entered upon a place of known danger. He had plenty of time to look. It was a right angle crossing, rendering it equally convenient to look in either direction. The view to the north had not been obstructed for some distance; he was free to look south as soon as he came out of the cut. He was going at twelve miles an hour; he could have slowed down to. five or six. He had no occasion to hurry and nothing to divert his [209]*209attention from an approaching train. He challenged fortune and intrusted his safety to chance. We think but one conclusion can be drawn; without his negligence his injury would not have been sustained.
The judgment should be reversed and the complaint dismissed, with costs.
Hinman and Hasbrouck, JJ., concur; Davis, J., dissents, with an opinion in which Hill, J., concurs.