
    Rebecca Sutherland, as Administratrix of the Goods, Chattels and Credits which were of Mark Sutherland, Deceased, Resp’t, v. The Troy & Boston Railroad Co., Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    Negligence—Contributory.
    Where the accident would not have happened hut for the intestate’s own negligence and violation of the rules of the company, he is guilty of contributory negligence.
    Appeal from a judgment in favor of the plaintiff.
    
      T. F. Hamilton (John II. Peck, of counsel), for app’lt; Warren, Patterson & Faulkner, for resp’t.
   Herrick, J:

This case has been several times before the court. The court of appeals, 35 St. Rep., 853, held that upon the evidence the plaintiff was not entitled to recover, because she “ did not meet the obligations resting upon her of presenting a case from which the jury could fairly find that her intestate was free from any negligence which contributed to his death.”

Upon this last trial there was some additional evidence presented upon the question of contributory negligence from what appeared in the case when it was before the court of appeals, but from a careful reading of the case, I cannot see that the facts are substantially different from what they appeared to be then. Under the ruling of the court of appeals it seems to me that the plaintiff has not now, as she did not then, established the fact that her intestate was free from contributory negligence. Instead of meeting the obligation that devolved upon her of proving a lack of negligence, the evidence strongly points directly the other way, and that but for the intestate’s own negligence and violation of the rules of the company this accident would not have happened.

While upon this last trial there was evidence showing that the intestate upon frequent occasions ran his engine at a rate of ■speed greater than was permitted by the rules of the company, and that some other engineers had done the same thing, it also appears that, in addition to these rules, warning had been given and posted upon the bulletin for the inspection of engineers that they must not exceed the rate of speed prescribed by the rules of the company. It seems to me, upon the evidence of the case as it now appears, that within the former decision of the court of appeals the plaintiff is not entitled to recover. The judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurs; Putnam, J.,' not acting.  