
    Salmon v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1889.)
    Railroad Companies—Accidents at Crossings—Contributory Negligence.
    Deceased was struck and killed by defendant’s train while attempting to cross the tracks. She was old, but had good sight and hearing, and knew the crossing well. The accident occurred in the day-time, at the intersection of a street. There were four tracks running parallel; the outer ones being nsed by trains bound east, and the others for those going west. There was a sidewalk crossing the tracks, from which a considerable quantity of snow had been thrown on either side. There were gates kept at the crossing, but they did not extend across the walk. They were in charge of a watchman at the time of the accident. There was a train on one track partially obstructing the crossing, and two trains from the west were approaching when deceased started to cross from the north. The gate-keeper advised her not to cross, as there was something coming on the track. She crossed three of the tracks without injury, and, after passing the standing train, had a clear view of the last track, on which was the train that struck her. Held, that she was guilty of contributory negligence.
    
    Appeal from circuit court, Oneida county.
    Action by Octavius F. Salmon, administrator, etc., of Sophia M. Williams, deceased, against the Hew York Central & Hudson Biver Railroad Company, to recover for the negligent killing of decedent. A verdict for defendant was directed, and judgment rendered accordingly. Plaintiff appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      McMahon & Curtin, for appellant. C. D. Prescott, for respondent.
    
      
       Respecting contributory negligence in actions for injuries received at railroad crossings, see Greenwood v. Railroad Co., (Pa.) 17 Atl. Rep. 188, and note; Hooper v. Railroad Co., (Me.) Id. 64, and note; Fletcher v. Railroad Co., (Mass.) 21 N. E. Rep. 302, and note; Campbell v. Railroad Co., 3 N. Y. Supp. 694, and note.
    
   Martin, J.

This action was to recover for personal injuries sustained by the plaintiff’s intestate, which resulted in her death, and which were alleged to have been caused by the defendant’s negligence. The accident, which resulted in the injuries complained of, occurred at about noon on the 5th day of January, 1888, at the crossing of the defendant’s road at James street, in the city of Borne. The defendant’s road crosses the street diagonally at a point 239 feet east of its station. At this crossing defendant has four tracks, which are numbered, from the south to the north, 1, 2, 3, and 4. Tracks 1 and 4 are for east-bound trains, and tracks 2 and 3 are for west-bound trains. The defendant’s road runs along and across the street for the distance of 92 feet, while the street is but 66 feet in width. The distance from the building on the north side of the defendant’s road, and on the east side of James street, to the building on the opposite side of the defendant’s road, is nearly 60 feet. There was a planked sidewalk about five feet in width across defendant’s road. There was snow upon the walk, and considerable thrown upon each side, both north and south of the crossing. The defendant maintained gates on both sides of its tracks, but the gates did not extend to the sidewalk on either side. They were in charge of a watchman at the time of the accident. When the decedent’started to cross the defendant’s tracks a passenger train was standing at the station, with its rear car resting on James street, and partially obstructing it. A freight train was approaching from the west on track Ho. 4, and another freight train was also approaching from the west on track Ho. 1. As she approached the crossing, and was about to cross, the watchman at the gate told her not to go over, as there was something coming on track 1. That she understood him, is shown by her subsequent admissions. She, however, continued without heeding the warning given her, and passed over the other tracks for a distance of about 43| feet before reaching track 1, where she was struck by a train on that track, and fatally injured. She was 73 years of age, but her eyesight and hearing were good. She was quite smart for a person of her years, and had resided for about two years south of and but a short distance from this crossing. She had to cross the defendant’s track to attend church, and to do her shopping. Her direct route was over this crossing, and hence she must have been familiar with the crossing and the trains running on defendant’s road. If her view was obstructed by the passenger train standing on track 2, still, after passing that track, she could have seen west for the distance of 445 feet from that point until she reached track 1. At the close of the evidence, the court directed a verdict for the defendant, upon the ground that the evidence did not show that the plaintiff’s intestate was free from negligence which contributed to her injury, and that it was shown conclusively that she was guilty of contributory negligence. The principal question involved on this appeal is the correctness of this decision.

In an action of the character of this, it seems to be settled that, before a party can recover, he must show, by circumstances or otherwise, that there was no negligence on the part of the decedent. Wilds v. Railroad Co., 29 N. Y. 330; Warner v. Railroad Co., 44 N. Y. 466; Cordell v. Railroad Co., 75 N. Y. 330; Hale v. Smith, 78 N. Y. 480; Tolman v. Railroad Co., 98 N. Y. 198; Splittorf v. State, 108 N. Y. 205, 216, 15 N. E. Rep. 322. A careful examination of the evidence in this case has led us to the conclusion that the plaintiff not only failed to prove that the decedent was free from contributory negligence, but that the undisputed evidence tended to show quite conclusively that the negligence of the decedent was the cause of her injury. We think the direction of a verdict for the defendant was justified by the principle of the foregoing and following authorities: Davenport v. Railroad Co., 100 N. Y. 632, 3 N. E. Rep. 305; Woodard v. Railroad Co., 106 N. Y. 369, 13 N. E. Rep. 424; Young v. Railroad Co., 107 N. Y. 500, 14 N. E. Rep. 434; Donnelly v. Railroad Co., 109 N. Y. 16, 15 N. E. Rep. 733; Powell v. Railroad Co., 109 N. Y. 613, 15 N. E. Rep. 891; Bomboy v. Railroad Co., 47 Hun, 428; Heaney v. Railroad Co., 19 N. E. Rep. 422; Hunter v. Railroad Co., Id. 820, (decided by the court of appeals, February 8, 1889.) We have carefully examined the plaintiff’s exceptions to the admission and rejection of evidence, and have found none that seem to require special consideration, or that would justify a reversal of the judgment ■ appealed from. It therefore follows that the judgment herein should be affirmed. Judgment affirmed, with costs. All concur.  