
    Emma Zaun, as Administratrix, etc., of William Zaun, Deceased, Appellant, v. Long Island Railroad Company, Respondent.
    Second Department,
    July 29, 1910.
    Railroad — negligence—death, by'collision at grade crossing—failure to prove freedom from contributory negligence — duty where view is obstructed by passing train.
    Although where an injury causes death less evidence of freedom from contributory negligence is required than in a case where the injured person is living and can testify, the representative of the decedent is still under the burden of giving evidence upon that point.
    Thus, where the plaintiff’s intestate was killed at a grade crossing while riding a bicycle, it must be shown that before attempting to cross he looked in both directions. Proof that he looked in one direction only is insufficient.
    There is no presumption that the deceased looked to see if a train were approaching; it must be proved.
    If a'train passing upon one track temporarily obstructs the view of the next track, it' is the duty of one desiring to cross to wait until the temporary obstruction has disappeared.
    Woodward, J., and Hirschberg, P. J., dissented, with opinion.
    Appeal by the plaintiff, Emma Zaun, as administratrix, etc., from a judgment of the Supreme Court in favor.of the defendant, entered in the office of the clerk of the county of Nassau on the 16th day of October,. 1909," upon the dismissal of the complaint, by direction of the court, after a trial at the Nassau Trial Term, and also from an order éntered in said clerk’s office on the 18th. day of September, 1909, denying the plaintiffs motion for a nexv trial made upon the minutes.
    
      R. A. Mansfield Hobbs, for the appellant.
    
      Matthew J. Keany [Edward Kelly and Joseph F. Keany with him on the brief], for the respondent.
   Burr, J.:

This action was brought to recover for the pecuniary injury resulting from the death of William Zaun on the 7th of July,1908. He was killed a.t the junction of Bayview avenue and the tracks of the Long Island railroad. At that point the tracks run approximately east and west. • The deceased was approaching, the tracks from the south, riding upon a bicycle. The first track that he would come to was the track upon which the east-bound trains, run ningfrom Héw York to Patchogtie, pass.:. Over.the more northerly track trains passed in a westerly direction, running from Patchogue to Hew York. He was killed by a train upon this track.

At the close of plaintiff’s, case, andagain at the close of the entire case, defendant moved for a nonsuit.' The court reserved decision, and submitted the case to .the jury, Thei jury disagreed, and-thereafter the court granted the motion for. a nonsuit, and. from the judgment entered thereon this appeal is taken.

There was sufficient evidence to require the. submission to the ' jury of the question of defendant’s negligence. Plaintiff not only failed to establish freedom from contributory negligence on the part of the deceased, but established affirmatively that thé accident - was due to his want of- care. ^ - : :

Three witnesses were: called for plaintiff to testify as to. the happening of the accident. Hone of them actually-saw the train strike the deceased, although one of the witnesses-' saw him when within a very few feet of the • northerly, rail of the west-bound track. Deceased’s body was found lying about six or seven feet ' from that point. He had lived in the neighborhood for some time, and was thoroughly familiar with the location and surroundings, It was claimed, and probably correctly, that the' crossing was somewhat dangerous because of the frequent passing-of trains over the tracks, and of. vehicles and pedestrians across the road. As the deceased approached the first or east-bound track from, the south,' going in a northerly direction, a train passed along going easterly, consisting of four or five cars.

The witness Bloom testifies that just1 after the east-bound train had passed he noticed a train coming on the northerly track, bound - west. He did not notice the inan on the wheel- until lie had .been struck. - . ■

The witness .Bedell testified that he, observed the deceased waiting ini til the east-bound train on'the, southerly, track had passed, when he started to 'Cross the track arid.kept moving along on-his wheel.' He did not notice him'until he was struck. -.

But-the' witness Gilmore,-who was .dallied for plaintiff, testified - that he observed the deceased, after the east-btiund train had passed, go right behind it; that he saw him look toward the west, whence the train from Hew York was coming on the first track that he approached; that he did not look toward the east, whence the train that struck him was coming, and he'was sure of that because he kept watch of him all the time. This - same witness testified that, when 20 feet south of the first track, it was possible to see 320 feet to the east. Other witnesses put the distance greater, and say that at 40 feet from the southerly line of that track one could see in an easterly direction 800 feet, and when one got upon the southerly track upon which the first train was running, and between the tracks, one could see for half a mile, or 3,000 feet, in an easterly direction. Ho witness testifies to any permanent obstruction which would prevent deceased from seeing the approaching train in ample time to avoid a collision with it.

Although in the case of the death, of an injured person less evi- ■ dence is required to establish freedom from contributory negligence than though the injured person was living and could testify, the burdemof proof still rests upon the representative of the deceased to introduce some evidence upon that point. As I have before stated, plaintiff’s evidence establishes affirmatively that the deceased did not look in the easterly direction at all, and that if he had looked before going upon the west-bound track on which the train that injured him was coming, he could have seen the train more than half a mile away. It is quite apparent that seeing the train going east, he assumed that was the only train passing, at that time, and passed along immediately in the rear of that train without looking in the' other direction to see if there was a train coming. If his view of the train coming from the east was temporarily obstructed by the train passing on the other track, it was his duty to wait until that temporary obstruction had disappeared. (Heaney v. Long Island R. R. Co., 112 N. Y. 122; Daniels v. Staten Island Rapid Transit Co., 125 id. 407 ; Turck v. N. Y. C. & H. R. R. R. Co., 108 App. Div. 142.) It will not be presumed that the. deceased looked to see-if there was a train approaching; it must -be proved. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308.) The evidence establishes affirmatively that the deceased did not look.

The judgment and order appealed from should be affirmed, with costs.

Jenks and Thomas, JJ., concurred; Woodward, J., read for reversal, with whom Hirsohberg, P. J., concurred.

Woodward, J. (dissenting):

I am unable to concur in the opinion of Mr. Justice Burr that the evidence in this case establishes affirmatively that the plaintiff’s intestate was guilty of contributory negligence. On the contrary, I think a fair case was presented for the jury. It is -true that one of plaintiff’s witnesses testified that he saw the deceased as he, approached the defendant’s tracks looking to the west-— the direction from whence came the train from New York on .the track nearest the plaintiff’s intestate—and that he did not look to the east, but he subsequently modified this by saying: “I won’t say he didn’t look to the east. I cannot say he constantly kept his eyes toward the west. He was looking that way. A man doesn’t always have his gaze rigidly fixed in one direction. * *< * The last time I saw this man before I observed him spinning around the north side of the track was when he was on my side of the east, bound train.” The witness lived on the side of the railroad nearest the east-bound track—the south side — so that, his testimony is to be understood as thus modified. In other words, the witness -saw the plaintiff’s intestate approaching "the ' southerly track of the defendant’s railroad; he saw him looking toward the west, the direction from which the train on the southerly t-rack was approaching, and he saw him running very slowly with his gaze turned generally to the west; he. saw the deceased pause for this eastbound train to pass, and the last time'he saw him, until he saw' him spinning around the north side of the track, “ was when he ■ was on my side of the east-bound train;” So that this witness^ who is the only one who pretends to have observed the plaintiff’s intestate closely enough to say in which direction he was looking, merely testifies that the deceased was looking in a westerly direction all of the time prior to the passing of the east-bound train,; that he was, in fact, exercising that degree of care, in respect to the east-bound train, which the circumstances demanded. This witness does not pretend that he saw the deceased after the easi-bound train went along until the moment following the' actual contact; he says: “ When that train passed he'went right across, and I didn’t see him again until he got to the other side, because the other train hid the view,” and he subsequently explained that he meant by the “ other train” the train going west. So far as appears from the testimony, therefore, the plaintifE’s intestate was in the exercise of due care at all the times that he was within the view of this witness; he was o.n the south side of the tracks looking west — looking in the direction from which a train was at the time approaching — and he halted and let this train pass. When it had passed he pro-. ceeded on his way, out of the view of the witness now under consideration, so that the evidence clearly fails to show affirmatively that the deceased did not look to the east before1 entering upon the westbound track, and the fact that he had exercised reasonable care in respect to the east-bound track certainly does not raise a presumption that he failed to do so in respect to the west-bound track. The undisputed evidence is that the west-bound train struck the rear wheel of the deceased’s bicycle; he was nearly out of danger at the time of the contact; tlie witness testifies that the east-bound train left a cloud of dust, the distance between the tracks was not great, and it may well be that the deceased, looking to the east, saw the approaching train and believed that he had time to cross. There was evidence in this case from which a jury might reach the conclusion that the usual whistling and ringing of the bell of the defendant’s ■ approaching train was omitted, and if this was true, the plaintiffs intestate, being familiar with the custom, might have relied in some measure upon this fact, and have acted accordingly, or he may have been momentarily blinded by the flying dust after the east-bound train had passed, and thus have been exposed to dangers by reason of the defendant neglecting to give warning of its approaching train. It is certain that the deceased, at the last time he was seen by any one prior to the accident, was in the exercise of due care,- and this fact, in connection with all of the facts and circumstances detailed by the evidence, might fairly lead to the inference that the deceased continued to act with that degree of care which a reasonably prudent man would or should use under the circumstances, and it was error, therefore, for the court to grant the motion for a nonsuit. (See Woodworth v. N. Y. C. & H. R. R. R. Co., 55 App. Div. 23.) ' The track at this point is on a seven-degree curve; the view is-somewhat obstructed, and the deceased, going upon the crossing immediately in the rear of the east-bound train, was not able, per-' haps, to get a clear view of the track. True, of course, if the view was-momentarily obstructed, he owed some duty of care not to rush into a position of danger, but .he had no reason to -anticipate the immediate danger if the defendant failed to give the usual warning, and he. was not bound to use the highest degree of care — only just reasonable care, and if this required looking or listening, under all of the circumstances of the case, then it was hjs duty to do these things, but what was reasonable care under all of the circumstances of this case is not one of law purely; it is a mixed question of law and fact, and the jury should be given an opportunity to decide the issue. I think there was some evidence that the deceased was exercising reasonable care; he did exercise that care in reference to the first track; he was apparently mindful of the dangers, and to presume that he suddenly changed his. attitude of care, and wholly disregarded his obligations within a few' seconds of time, is hardly warranted; at least such an inference should, not be drawn by the court.

I think the judgment and order should be reversed and a new trial granted.

Hirsohberg, P. J., concurred.

Judgment and order affirmed, with costs.  