
    Apolonia Fejdowski, as Administratrix, etc., of Wincenty Fejdowski, Deceased, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
    
      Negligence — an engine immediately following a freight train — under what circumstances a man hilled by the engine may not have been guilty of contributory negligence.
    
    At a railroad crossing, on an intensely dark night, a freight train passed, followed on the same track, within 100 or 200 feet, by an engine running backwards at the rate of from twenty-five to thirty miles an hour, with no light at the rear end, giving no signal of any kind, emitting no sparks and making little or no noise, while the noise of the passing train was still to be heard, approaching so stealthily that a man on the sidewalk watching for a coming train did not see or hear it until it passed within five feet of him. A man, who had stopped his wagon some twenty feet from the tracks to let the freight train pass and then drove upon them, was struck and killed by the engine.
    
      Held that it could not he said, as a matter of law, that such circumstances did • not reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased.
    Quaere, whether, under the circumstances, the deceased might not he excused for not looking for the following engine.
    Appeal by the plaintiff, Apofonía Fejdowski,' as administratrix, etc., of Wincenty Fejdowski, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 21st day of April, 1896, upon a nonsuit granted by the court after a trial at a Trial Term off the Supreme Court 'held in and for the county of -Schenectady.
    
      Daniel Naylon, . Jr., and Edward O. Whitmyer, for the appellant. •
    
      Lewis E. Garr, for the' respondent.
   Parker, P. J.

The deceased was crossing a single track of the defendant’s road, at Edisoh avenue in Schenectady, in a wagon, driving two horses. When he got to within about 20 feet of the track, he stopped to .allow a freight train ito pass him. . It was in the night time and very dark. After, that train had passed about 100 feet, he started his team and drove on to the track, and was there caught by an engine following the, freight train, and killed. Such engine Was hacking up, without any light on its rear' end. It give no, signal's, either by bell or Whistle; was' not emitting any sparks or steam, and Was running at the rate of twenty-five or thirty miles an hour.

• This aption is brought by his administratrix to recover against the ■defendant for negligently killing the deceased, and she Was nonsuited on the ground that the evidence does not sufficiently show that the deceased-was free from negligence that contributed to the accident. There is no direct evidence to show whether, after the freight train passed, the deceased did, or did not,- look before- lie drove on to the track to- isee whether anything Was following such train. But it does appear that, had he looked, lie would have had an unobstructed view (save for the darkness) for about 1,000 feet along the track in the direction from which the engine approached.

It was. the duty of the plaintiff to show affirmatively that the negligence of the deceased did not contribute to the injury. (Tolman v. Syracuse, etc., R. R. Co., 98 N. Y. 198.) No one was with the -deceased, and no one saw him as hé passed onto the track. But, Under suplo, circumstances, direct proof of care on his part is not indispensable.; The circumstances may-show that the deceased exercised proper care for his own safety. In the Taiman case, above'cited (p. 203),; Judge Finch states the -rule in the following language : The-burden of establishing affirmatively, freedom from contributory negligence, may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury and require a choice between possible, but divergent, inferences. If, on the other hand, those facts and circumstances, coupled with the occurrence of the accident, do' not indicate or tend to establish the existence of some cause or occasion of the latter which is consistent with the exercise of proper prudence and care, then the inference of negligence is the only one left to be drawn, and the burden resting upon the plaintiff is not successfully borne, and a nonsuit for that reason becomes inevitable.”

In Cordell v. N. Y. C. & H. R. R. R. Co. (75 N. Y. 330), and in Wiwirowski v. L. S. & M. S. R. Co. (124 id. 420), it is stated in shorter language, as follows: “ When the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a nonsuit should be granted.”

The circumstances of this case, as it comes before us, are not disputed. The deceased heard the signal of the approaching freight train and stopped about twenty feet from the ti'aclc to allow it to pass. It appears from a witness, who was on the sidewalk of the same street, that he also stopped about the same distance from the track while such train was passing. As the train came up, he saw by the headlight of that engine, the deceased sitting in the wagon waiting, but after the train had passed it was too dark to see the man. He, however, heard him tell his horses to go on, and heard him driving towards the track. The witness himself also passed on, rand when he got to within about five feet of the track, the engine, to ■use his expression, “ flew by me,” and instantly struck the deceased. 'The witness f urther tells us that he could not tell whether the deceased looked for another train or not, because it was so dark he could not see him, but that he, himself, looked up the track constantly from •the time he started after the freight train had passed, thinking it possible that another train might follow, and watching for one, and ,yet he did not see the engine until just as it struck the deceased.'

Such áre the circumstances under which the deceased met his death. An. intensely dark night, a freight train just passed, an engine following on the same track within 100 or 200 feet-of such train, .at the rate of 25 or 30 miles an hour, running backward and without a car attached, no light on the rear end, no.signal of any kind given, emitting no sparks and making little or no noise, while the. noise of the passing train was still to be heard. In short, an engine approaching so stealthily that a man who was on the sideivalk, between the deceased and it, although watching for a coming train, did not see or hear it until it passed within five feet, of him. ■ In addition. to this, we are to consider that a certain amount of the deceased’s attention must have been given to his horses.. •

It cannot be said, as matter of law, that such circumstances do not reasonably indicate, or tend to" establish, that the accident might have occurred without negligence on the part of the deceased.” "Whether, taken all. together, they point to the conclusion that the reasonable precautions which the. deceased was able. to take were insufficient to enable him to discover its approach, or to the conclusion that he heedlessly drove in front of the engine, is a question for the jury to solve.

The Wwjowowski case, above cited, is not in conflict with this conclusion. The same rule of law was there adopted, as is cited above, but in applying it to the facts of that case the court thought that a nonsuit was proper. In that case the engine, although backing. down without a rear light and without signals, was moving at a speed of about four miles an hour. It was hauling a caboose with a light on the top of it. There was nothing to obstruct the hearing, nor the vision, except the darkness, which does not seem to have been very intensé. Thé deceased walked on to the track ahead of the engine, and considering the speed at which it was going it. must have been very close to him when he did so, so close that it is hardly creditable that he could have looked without seeing it. In the-case before us, the engine was moving at a speed of from forty to to forty-dour feet in a second, and was naturally a considerablé distance away from the deceased in the darkness, when his horses began to go upon the track. In the Wiwirowshi case there is no evidence that any one made any effort to see the approaching engine at any point near to the place where the deceased was struck. In the case before us a witness, in as favorable a position to see as was the deceased, and but a few feet from him, made diligent but unavailing watch for it.

It is true that it was not shown that the eyesight or hearing of such witness was good, but I do not know that it is to be presumed that the deceased’s was any better.

There is another feature in the case before us to be considered. Assume that, after starting from the point where he waited for the. freight train to pass, the deceased drove directly on to the track without looking for another following it, should it be said as matter of law that he was negligent in so doing ? Such a situation is quite different from that in the Rodrian Case (125 N. Y. 526), where a. person was held negligent for allowing his attention to be distracted by a train passing on another track. In this case the engine was. following at a. rapid speed a freight train just ahead of it on the same track; and the question whether such a thing was likely to occur so close to the train ahead of it is to be considered in determining whether the deceased acted as a man of ordinary prudence would have acted under such circumstances. (See Brown v. N. Y. C. R. R. Co., 32 N. Y. 597-602; Bowe v. N. Y. C. & H. R. R. R. Co., 89 Hun, 594.)

Whether such a condition may be held tó be a sufficient excuse for not looking for a following train or not, it is a circumstance to. be considered with the others in this case, in determining whether,, taking them all together, they do not indicate that the accident might have occurred without any negligence on the part of the deceased. In this respect also, as well as in several others, this case differs from the Wiwi/rov)slñi Case, and leads us to conclude that such case is not controlling upon this one. It is our conclusion that the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Putnam, J., not sitting.

Judgment reversed and a new trial granted, costs to abide the event.  