and burdens together. No valid reason is shown why the trust should not be performed by payment pursuant to its terms. No adverse claimants are shown to exist. The defendant has shown nothing that exposes him to risk. There is no need of the circuity of appointing a new trustee. The defendant has the fund. Its amount has been determined. He has no better right to retain it than his testator had, and he should pay it over as directed by the judgment. The judgment should be affirmed, but as the sixth clause. of the will, which gives rise to this contest, seems to be so framed as to invite challenge, costs of both parties are allowed out of the fund. Judgment affirmed, with costs to both parties out of the fund. All concur. (8 App. Div. 138.) WILBER v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Third Department. July 7, 1896.) ACCIDENTS AT RAILROAD CROSSINGS-NEGLIGENCE-QUESTION FOR JURY. Plaintiff was struck by defendant's locomotive at a highway crossing. No warning was given by the flagman of the approach of the train. Plaintiff testified that he stopped, looked, and listened before going on the track, but that he did not see or hear any train; that no whistle was blown, or bell rung; and that the flagman did not say anything to him as he went on the track. Held, that the question as to whether plaintiff was guilty of contributory negligence should have been submitted to the jury. Appeal from circuit court, Schenectady county. Action by Benjamin F. Wilber against the New York Central & Hudson River Railroad Company for personal injuries. Plaintiff was nonsuited, and appeals. Reversed. Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ. P. C. Dugan and I. H. Maynard, for appellant. MERWIN, J. On December 30, 1894, between 1 and 2 o'clock in the afternoon, the plaintiff, as he was walking westerly along the northerly side of State street, in the city of Schenectady, and across the tracks of defendant, was struck and injured by the fast mail train of defendant, coming from Albany, and not stopping at Schenectady. It was running at the usual rate of speed. There was no warning by flagman, as required by the ordinances of the city. For the injuries received by the plaintiff, he sought to recover of the defendant damages, upon the ground that it was negligent in not giving proper signals or warning of the approach of the train. A nonsuit was granted on the ground that the plaintiff did not show himself free from negligence. At that crossing the defendant had five tracks; and the Delaware & Hudson Canal Company, two tracks. A traveler, coming in the direction plaintiff did, first reached the two tracks of the Delaware & Hudson Company; then the two freight tracks of de fendant; then the Troy track, so called, of defendant; then track No. 2, upon which the train in question was running. There was a flagman's shanty or station between the Delaware & Hudson tracks and the defendant's freight tracks, and also between the Troy track and No. 2. The defendant's tracks, according to the map in evidence, as they leave State street going towards Albany, curve westwardly, so that the trains, as they come in, come from a southwesterly direction. The defendant had for several years kept a flagman at the crossing, whose duty it was to give warning of the approach of the trains by waving a flag. The custom was for the flagman to be out in the street, in the center of the roadway, waving his flag, on the approach of trains, and this custom was known to the plaintiff. The street between the curbing was about 60 feet wide, and the sidewalk on each side was about 20 feet wide. The weather was cold, below freezing point, and there had been on the 27th December a fall of snow, to the extent of 15 inches, as measured at Albany, and the temperature was then, and to and including the 30th, abnormally low,-not at any time above freezing. The wind at Albany on the 30th, between 1 and 2 o'clock, was moving from the south at a velocity of 13 miles an hour. The plaintiff testifies that as he came down the street, and reached the Delaware & Hudson tracks, he stopped and looked up and down. "I did not see any train, nor hear any, but I stopped and looked. Then I went on, and came past the Troy track, and then halted and looked up and down, and saw nothing, and started on. I heard nothing. I went on to go over the tracks. There was a little girl just ahead of me. She went on. I got onto the track a little piece, and heard something, and undertook to jump back, and I was struck. After I got past the Troy track I halted, and looked down towards Albany and up towards the depot. I did not see or hear any trains. There was no whistle blown or any bell rung. I proceeded on, and got on the track. Then the train hit me. It was right on to me. I kind-a jumped back, or tried to jump back, and it struck me. I jumped to get out of the way, and was hit. Before I got down to the Troy track I passed the flagman who stood there; stood right on-in about that first shanty, or flagman's station. He stood there with his flag and his hand down, and I passed right by him,--I would say, about within two feet of him. When I came towards him we were face to face. He did not say anything to me about the train coming. He did not wave any flag. In coming down that afternoon there was quite a considerable wind blowing, and snow flying. As I was coming across this crossing I could not see more than twenty-five or thirty feet, I don't think, at the utmost, towards Albany. My eyesight has not been first rate for a number of years. I was about two or three feet, I think, past the Troy track before I looked towards Albany and towards the depot. Next to the Troy track was the track upon which I was hit. A little girl passed on ahead of me there. Towards Albany, I could not see across the street. I looked there for the flagman, and there was none there,-only the flagman I saw on the street when I passed him on the street. ** * *There was from twelve to fifteen inches of loose snow on the ground at that time. The wind was blowing strong. When I crossed the Troy track I halted and listened, and heard no bell or whistle." **** * * The McDonald, a witness for plaintiff, saw the train after plaintiff was hit, and when the train was about half past the crossing. witness was in a store 80 to 100 feet distant from the train. other witness for the plaintiff, upon his cross-examination, testified An that he was going down State street, on the canal bridge, at the time of the accident, and from that point could see the cars as the train passed across the street, and that he was about 250 feet distant. The distance between the Troy track and track No. 2, where the foot passengers walk, is a distance of 15 feet, in the widest part. According to the map, it was about 12 feet in the narrowest part. The plaintiff testifies that he thinks he was about 2 or 3 feet past the Troy track when he looked. The defendant claims that the plaintiff was, as matter of law, negligent in not looking again before he started to cross No. 2. To support this proposition the case of Fowler v. Railroad Co., 74 Hun, 141, 26 N. Y. Supp. 218 (affirmed without opinion in 147 N. Y. 717, 42 N. E. 722), is cited. That case involved an accident at this same crossing, but on the other side of the highway, and to a person coming eastwardly. At the corner there was a building called the "Express Office," then a spur track running beside the building southerly from State street, and upon this there was at the night of the accident a car standing which obstructed the view southerly. Then came track No. 1, and then No. 2, upon which the train was com ing. The only evidence on the part of plaintiff as to looking and listening was that when the express building was reached, and when yet some feet distant from the first track, he looked both ways. He made no additional attempt to gain a view of the tracks after passing the obstruction to his vision caused by the presence of the standing car. In the present case the plaintiff looked at a point where, aside from the flying snow, there was no obstruction, and after arriving in the space just preceding the track upon which he was hit. In this respect, as well as in the surrounding circumstances, the Fowler Case seems to be materially different from the case in hand. The fact that a party who looked did not look at the precise place and time where and when looking would have been of the most advantage does not necessarily, as matter of law, bar a recovery. Andrews, J., in Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. E. 741. It is usually a question for the jury, inasmuch as the surrounding circumstances are to be considered, and their effect upon men reasonably prudent. Greany v. Railroad Co., 101 N. Y. 419, 427, 5 N. E. 425; Glushing v. Sharp, 96 N. Y. 677; Parsons v. Railroad Co., 113 N. Y. 355, 364, 21 N. E. 145; Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. 128. In such cases, as said in the Parsons Case (page 364, 113 N. Y., and page 147, 21 N. E.): "The question is whether the injured party, under all 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." In the Glushing Case it is said: "He looked both ways, and whether, under all the circumstances, he should have looked again, or continued to look, was for the jury to determine." The party was bound to make all reasonable effort to see that a careful, prudent man would make under like circumstances. He was not bound to provide against any certain result. Shaw v. Jewett, 86 N. Y. 617. The fact that witnesses for plaintiff testified to their ability to see the train, as it crossed the street, at a greater distance than plaintiff, as he testified, could see, by reason of the blowing of the snow, does not necessarily show that plaintiff might have seen the train when he looked, or even that in his position he could see further than he said he could. The absence of any warning from the flagman is a material element on the question of the contributory negligence of the plaintiff. McNamara v. Railroad Co., 136 N. Y. 650, 32 N. E. 765; Dolan v. Canal Co., 71 N. Y. 285; Wilbur v. Railroad Co., 85 Hun, 155, 32 N. Y. Supp. 479. In the McNamara Case it is said of the care required from the party injured: "She had the right to rely upon the presence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train, by ringing the bell and sounding the whistle." The same principle is applicable as in cases where the crossing is guarded by gates. "A traveler approaching a railroad crossing guarded by gates is not required to exercise the same vigilance in looking and listening as where the approaches are not so guarded." Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. 256. An open gate is said to be a direct and especial assurance to the traveler that the way is safe. Danforth, J., in Palmer v. Railroad Co., 112 N. Y. 234, 241, 19 N. E. 678. Whether, in the present case, the plaintiff relied on the absence of the flagman as an assurance of safety, was for the jury to say. Giving-as we must on the consideration of the propriety of the nonsuit-that construction to the evidence that is most favorable to the plaintiff, a case was, I think, presented for the jury to decide. It should not be said, as matter of law, that the plaintiff did not sufficiently look. He had a right, as the jury might find, to suppose, from the absence of the flagman, and hearing no bell or whistle, that the crossing was safe. The train was a fast one, and whether, by the exercise of reasonable care, he could have avoided the injury, was, as in the McNamara Case, a question for the jury to answer. In the McNamara Case the view was obscured by a volume of smoke from a passing engine. Here the vision was obscured by the flying snow. Judgment reversed and new trial granted; costs to abide event. All concur. KRATZER v. VILLAGE OF SARATOGA SPRINGS. (Supreme Court, Appellate Division, Third Department. July 7, 1896.) TRESPASS-PLEADING. A complaint alleged that defendant quarried stone from its premises adjoining plaintiff's dwelling house, using powerful explosives in a careless and negligent manner, and carelessly and negligently blasted rock on the premises, making deafening reports, and shaking plaintiff's dwelling house, and terrifying plaintiff's family; that rocks were thrown on plaintiff's lot so that he could not cultivate it or inhabit his house without continual danger; and that rocks thrown by blasts broke the roof and windows of plaintiff's house, and injured one of plaintiff's family. Held, that the complaint stated a cause of action for trespass. Herrick, J., dissenting. Appeal from circuit court, Saratoga county. Action by Jacob Kratzer against the village of Saratoga Springs for injuries to plaintiff's property alleged to have been caused by negligent blasting on premises owned by defendant. The complaint was dismissed, and plaintiff appeals. Reversed. The complaint alleged, on information and belief, that defendant is a domestic corporation; that, at the several times hereinafter mentioned, plaintiff resided in, and was the owner of, a house on the northwesterly side of Maple avenue, in said village, known as "271 Maple Avenue"; that defendant has since June 1, 1892, occupied premises adjacent to the plaintiff's dwelling house, from which it has quarried large amounts of stone for use on the streets of said village, and for other municipal purposes; that defendant and its officers, agents, and servants used gunpowder, dynamite, and other explosives of high character, in a careless and negligent manner, and carelessly and negligently blasted the rock on the premises occupied by said village, at different times since said 1st day of June, 1892, and every day, during long periods of time, have discharged heavy blasts of dynamite and other explosives on said premises, which have made deafening reports, and shaken plaintiff's dwelling house and other buildings, and alarmed and terrified plaintiff and his family, and thrown rocks and stones, many of which were of great size and very heavy, over on plaintiff's premises, to such an extent that he has been unable to cultivate his premises, or to inhabit his dwelling, without continual danger and annoyance and fear, and the stones and rocks thrown by said blasts have repeatedly struck his said dwelling house and buildings; that during the summer of 1892 a rock struck the roof of his barn, and injured it, another rock struck a grapevine belonging to plaintiff, and injured it, and on July 4, 1892, a large rock broke a hole in the roof of his dwelling house, and broke glass out of the windows; that on May 16, 1893, a large rock struck the roof of the piazza of plaintiff's dwelling, and went entirely through it, breaking the shingles and roof boards, and damaging one of the posts which supported the piazza, and terrifying plaintiff's wife and children, who were in the house at the time; that on June 10, 1893, a large rock was thrown as aforesaid through one of the outside doors of plaintiff's said residence, and another rock through one of the windows, one of which said rocks struck a cupboard, and partly demolished it, and broke a pitcher, and at the same time another large rock struck plaintiff's daughter, Minnie Elizabeth Kratzer, in the right side, and inflicted a severe injury upon her, by bruising the flesh of her side, inflicting a wound upon her arm, and breaking two of her ribs, so that she was confined to her bed for two weeks, during which period she required medical attendance, which plaintiff was compelled to furnish to her, and so that she has not since been able to render the services in and about plaintiff's household which she had been previously accustomed to render, and has ever since been, and now is, in consequence of such injury, often in pain, and without her accustomed strength and ability to labor. The complaint further alleged that in consequence of said wrongful and negligent acts of defendant, its officers, agents, and servants, plaintiff's dwelling has been less valuable for occupancy as a residence since June 1, 1892, and the occupation thereof has been attended with great hazard and discomfort, and that plaintiff has sustained damages in consequence of the matters herein mentioned to the amount of $1,000. The complaint further alleged that plaintiff's claim for damages had been presented, and notice of the time and place at which said injuries were received had been filed with the village clerk of defendant, and that said claim was so presented and said notice was so filed within one year after |