defendant would use all reasonable care to protect him. The same principle is applied in the case of Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. Rep. 752. We think, also, it was error for the court to charge the jury that there was no evidence in the case to show that the plaintiff was guilty of contributory negligence. The plaintiff left a place of safety, and deliberately placed himself in the position in which he was injured, without invitation from the defendant. Viewing this act in its relation to the question of the negligence of the plaintiff, we think it should have been submitted to the jury. Considering the method by which the gate was hung, the position in which the plaintiff placed himself, the fact that horses and carts were standing in the gateway with a possibility of collisions happening between the side of the gate and the carts or trucks going in and out, and the fact that other places were available to the plaintiff in the neighborhood for the accomplishment of his purpose, without placing himself alongside the gate in the immediate vicinity of these horses and trucks, we think the question of plaintiff's negligence was for the jury.

"We are not permitted to guess or assume that the deceased was free from fault because he was injured, or that every person will take care of himself from regard to his own life and safety, for the reason that human experience shows that persons exposed to danger will frequently forego ordinary precautions of safety. It is incumbent upon the plaintiff to show, by a preponderance of evidence, such facts and circumstances as will satisfy the minds of the jurors that the deceased exercised proper care and prudence, and did not omit the precautions of a prudent man under the circumstances. The law demands proof and not mere surmises." Riordan v. Steamship Co., 124 N. Y. 655, 26 N. E. Rep. 1027.

We also think that the court erred in charging the plaintiff's third request, that the defendant" was in duty bound to the plaintiff to use such safeguards in securing the gate as experience has shown to be safe." We do not understand that such a duty was imposed upon the defendant. The defendant was not confined to those appliances which experience has shown to be absolutely safe, but to those appliances which, under the circumstances, would appear to a reasonably prudent man to be a proper appliance to keep the premises in a safe. and suitable condition, free from danger from those rightfully using them. To prohibit a person from using any appliances other than those that experience has shown to be absolutely safe would prevent anyone in possession of the premises from applying any device or apparatus which had not been used before, the absolute safety of which had not been demonstrated. We do not think that this is a

correct statement of the obligation. It follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur except O'BRIEN, J., who dissents.

O'BIERNE v. NEW YORK CENTRAL AND

HUDSON RIVER RAILROAD COMPANY.

Supreme Court, New York, Appellate Division, First Department, February, 1899.

Where the

STRUCK BY DETACHED CAR AT RAILROAD CROSSING. plaintiff after looking up and down the tracks of a crossing and, seeing or hearing no car, drove across three of the four tracks in safety, and when thirty feet from the last track looked again and seeing nothing, kept on, and when the horses were on the track, saw a detached car approaching and kept on, and was struck by it, there being no signal or flagman, the questions of negligence were for the jury.

APPEAL from judgment, Supreme Court, Trial Term, dismissing the complaint.

The plaintiff was injured on April 4, 1894, on Eleventh avenue, in the city of New York. He was driving a wagon, and turned south into Eleventh avenue from Thirty-third street. Between Thirtysecond and Thirty-third streets four tracks of the defendant cross Eleventh avenue, running from northwest to southeast. On both sides of the avenue are the defendant's freight yards. The plaintiff looked south, east, and west when he turned into the avenue, and again when but thirty feet distant from the track where the accident occurred; but no moving car was visible. When the horses were upon the track, he heard a crash to the east, and, looking up, saw a single, detached car, approaching rapidly, and about 100 feet distant. He shouted to the horses, and attempted to get across, but the car struck the rear wheel of the wagon and the plaintiff was thrown off and injured. There was no brakeman on the car, or flagman at the crossing.

L. E. WARREN, for appellant.

D. W. TEARS, for respondent.

BARRETT, J. The plaintiff was nonsuited upon the ground that he should have kept looking to the east and west while passing over the thirty feet upon his side of the track where the accident occurred. No point was made as to the defendant's negligence. A prima facie

case on that head was clearly made out. 139 U. S. 469, 11 Sup. Ct. Rep. 569.

Railroad Co. v. Converse,

We think the question of contributory negligence was also for the jury. It is undoubtedly the duty of one who attempts to cross the track of a railroad at a point where rapidly moving trains are ordinarily to be expected to keep upon the lookout therefor. There is no absolute rule, however, requiring the traveler to use his eyes in a particular manner at a particular instant of time. Oldenburg v. Railroad Co., 124 N. Y. 414, 26 N. E. Rep. 1021. The surrounding circumstances are always to be considered upon the question whether proper prudence was observed. It was said in Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. Rep. 678, that the plaintiff "could not rush heedlessly on to danger, and throw the result upon the defendant, but the degree of care required of a traveler is increased or diminished by the greater or less probability, suggested by the circumstances about him, that without it an injury will happen." Applying this rule to the case at bar, we think it was for the jury to say whether the plaintiff was negligent. The locality was a public highway, which the defendant was using for purposes other than ordinary traffic. The plaintiff could have had no reason to anticipate the sudden appearance of a rapidly moving train or car. testified that as he approached the tracks he looked “up and down and over" them. No engine or car then appeared to be anywhere In fact, all was silent in the neighborhood. It was quite early in the morning. There was no signal or flagman. The plaintiff passed over one or more of the tracks in safety, and without incident of any kind. He then found himself within but thirty feet of the remaining track. Here again he looked to the east and west, and discovered no element of danger. Apparently there was none. It was while he was passing over this remaining thirty feet that the defendant executed the manoeuver whereby a single car was put suddenly into rapid motion without a brakeman to control it, or warning to passengers upon the thoroughfare. The jury might properly have found that the plaintiff could not have anticipated this sudden danger, and that he was justified, under the conditions which preceded it, in supposing that he could, in a few seconds, pass over the remaining track quite as safely as he had passed over the others.

He

The nonsuit was erroneous, and the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

KARLSON v. HEALY.

Supreme Court, New York, Appellate Division, Second Department, March, 1899.

LANDLORD AND TENANT - INJURY TO TENANT WHILE ON ROOF. — It cannot be said as matter of law that the plaintiff was guilty of contributory negligence for the continued use of a roof of a tenement house provided by the landlord with a flooring of slats and with poles for drying clothes, where it appeared that the plaintiff was aware that some of the slats were in a rotten condition, and that the landlord had promised to repair them, and the plaintiff, a tenant, was injured by the breaking of a slat that was not previously broken.

APPEAL from judgment, Supreme Court, Trial Term, Kings County, dismissing the complaint.

HENRY M. DATER, for appellant.

EDWARD M. GROUT, for respondent.

WILLARD BARTLETT, J. — The determination of this appeal depends on the question whether the trial court was justified in dismissing the complaint on the ground that the plaintiff had been guilty of contributory negligence. The plaintiff and her husband were tenants in an apartment house owned by the defendant. Upon the roof of the building was a fenced flooring of slats, with poles erected thereon, for the use of the tenants in drying clothes. The plaintiff was injured, while hanging out her wash, by falling through this flooring in consequence of the breaking of a slat upon which she stepped. There was abundant evidence that this roof flooring had been in a bad condition for weeks before the accident, some of the slats being rotten, and others broken, and that the landlord had been repeatedly informed of the defects, and had promised to have them repaired. That the plaintiff was aware of the condition of the roof was also clearly established. This fact, however, did not make it contributory negligence, as matter of law, on her part, to continue to use it, so long as it appeared to her that she might safely do so with the exercise of care. The learned counsel for the respondent argues that there is no proof that this roof was the sole place for drying clothes, or that there were no other means in the building for that purpose. The plaintiff, however, testified thus: "The arrangements made for hanging clothes on those premises were that we had to take the clothes on the roof, and dry them on the roof." We think it might be inferred from this statement that no other place had been provided by the landlord. The plaintiff's

acting with prudence and The slat which gave way

66

testimony further indicates that she was circumspection at the time she was hurt. under her was not previously broken. Its appearance was like that of the other slats. "I walked very carefully," she says, we have to be very careful when we have to be up there, because I was afraid; and I was very careful when I was up there that I should not fall." As Judge Bradley said, in Peil v. Reinhart, 127 N. Y. 381, 27 N. E. Rep. 1077: "While the question may have been a close one of fact, it could not properly be held, as a matter of law, that the plaintiff was guilty of contributory negligence." In the case cited the tenant was injured by falling on a stairway common to the occupants of the defendant's tenement house, and the same rule of liability applies to a landlord in respect to negligence in the maintenance of a slatted roof provided for the use of his tenants in drying their clothes. Alperin v. Earle, 55 Hun, 211, 8 N. Y. Supp. 51. It was error to dismiss the complaint in this case, and the judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the All concur.

event.

LOOIS v. EUREKA CLUB.

Supreme Court, New York, Appellate Division, Fourth Department, January, 1899.

ICY SIDEWALK – INJURY TO PEDESTRIAN. — Evidence that water from the defendant's roof was allowed to flow along the driveway and cover the sidewalk and there freeze and that defendant's servants cut a gutter to facilitate the discharge of the water over the sidewalk where it formed thick ice, on which plaintiff slipped and fell and was injured, was sufficient to authorize a finding of defendant's negligence, and a nonsuit was error.

APPEAL from judgment of nonsuit, Supreme Court, Trial Term, entered at close of plaintiff's evidence.

DAVID N. SALISBURY, for appellant.

DAVID HAYS, for respondent.

FOLLETT, J. This action was begun February 14, 1895, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. The defendant is a domestic corporation organized as a social club, under chapter 267 of the Laws of 1875, which was repealed, except section 7, by chapter 559 of the Laws of 1895 (Membership Corporation Law). During the year