
    Tomassina Spila, as Administratrix, etc., of John Spila, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    December 8, 1911.
    Railroad — negligence —. death of persons crossing tracks — contributory negligence.
    There can be no recovery for the death of a person who was struck by a railroad train if he attempted to cross' the tracks at a time when his view was wholly obstructed by smoke froin.a locomotive which had just passed, for he was guilty of contributory negligence as a matter of law. Woodward, J., dissented, with opinion.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of December, .1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 4th day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Sydney A. Syme, for the'respondent.
   Jenks, P. J.:

The respondent’s intestate, a man of mature years, and a companion, both riding on bicycles in a highway,-approached a place where the highway crossed at grade the tracks of. the defendant. The intestate attempted to .pass over the tracks, but was struck and killed by a south-bound train of the defendant. The companion, who rode back of the intestate, saved himself .by turning his vehicle into a telegraph post. -. This companion, the sole witness of the casualty called by the plaintiff, testifies that the two men looked for any possible danger first when they were, sixty feet away, and again when five feet away, but that at the time -— 5 p. M. on a cloudy and rainy June day-—their view was obscured wholly by the smoke emitted by the locomotive engine of a recent north-bound train, which smoke, still hung heavy and low over the tracks. And he admits that, regardless of any permanent physical obstrugtion to a view, they could not have seen the oncoming train because of this dense smoke. This testimony indicates contributory negligence as matter of law, for, to quote the language of Gray, J., in Heaney v. L. I. R. R. Co. (112 N. Y. 122), applicable to the intestate, “it was unquestionably his duty to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing.” (See, too, Keller v. Erie R. R. Co., 183 N. Y. 67.)

The judgment and order must be reversed and a new trial must-be granted, costs to abide the event.

Thomas, Carr and Rich, JJ., concurred; Woodward, J., read for affirmance.

Woodward, J. (dissenting):

Plaintiff’s intestate was struck by a train operated by the defendant at a grade crossing in the village of Mount Kisco on the 5th day of June, 1910, and instantly killed. Decedent was riding a bicycle and was accompanied by one Fedele, the latter being a few feet behind decedent and escaping his fate by running his bicycle into a telegraph post. The evidence is conflicting upon the material issues, but I am of the opinion that there was evidence in the case from which the jury might properly find that the defendant was guilty of negligence in the operation of its train, and that the decedent exercised that reasonable degree of care which the occasion would suggest to men of ordinary prudence. The decedent’s view of the track was obscured until quite near by a -factory building, and after that by two lines of telegraph poles, and it appears from the testimony that a train passing in an opposite direction had left a cloud of smoke behind it, so that the track for a distance of 200 feet or more from the crossing was obscured so that decedent and his • companion could not see the approaching train, and, if plaintiff’s witnesses are to be believed, the defendant on a dark, rainy day operated its train at the rate of forty miles an hour over this crossing and through this cloud of smoke without sounding a whistle or ringing a bell, or giving any warning of its approach. This is not a case of the decedent riding into the cloud of smoke; the evidence is .that the smoke was so dense 200 feet away from the crossing that the approaching train could not be seen, and the jury might properly have found that it was negligent on the part of the defendant to come out of this cloud of smoke within 200 feet of a grade crossing, running at a high rate of speed, without giving timely warning, and that the decedent was not to be charged with contributory negligence for passing over' an unobstructed crossing, where he had a view for 200 feet, and where he had' a right to rely in some measure upon the defendant exercising some degree of care for his protection.

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

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