
    Susan Westervelt, as Administratrix, etc., of James Westervelt, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Jfegligence— death of a pedestrian from a collision with a train at a crossing— a failure to gire a signal of the approach of the train requires the submission to the jury of the question as to the defendant's negligence—what proof fails to establish the absence of contributory negligence on the pedestrian’s part.
    
    In an .action, brought to. recover damages resulting from the death of the plaintiff’s intestate, who was run over by one of the defendant’s, trains at a railroad crossing in the city of Yonkers, two witnesses, neither of whom appeared to hear any relation to the parties, testified that they did not hear any whistle or ' bell as the train approached the crossing. One of such witnesses testified that he was standing in a - place where he could have heard the whistle or the hell if it had been blown or rung. The other witness was only three or four hun- . dred feet from the crossing on which the accident occurred.. None of the witnesses sworn upon the trial testified that the hell was rung or the whistle sounded.
    
      Meld, that the evidence was sufficient to authorize the submission of the case to ■ the jury upon the question whether the defendant was negligent in failing to-give any signal of the approach of the train.
    It appeared that there were -four tracks at the crossing and that the defendant maintained gates on each side of the crossing which were ordinarily kept down on Sundays; that the accident occurred on Sunday morning; that the intestate- • bent down to' pass under the 'gates, and whén he-reached the second ■ track the- . flagman stationed, at the crossing warned him not to proceed. Notwithstanding .such warning, he continued on his way and crossed the third track and stepped upon the fourth track when he was struck by a train approaching on that track. The testimony showed that after the intestate had passed within the gates, he- ■ -could have seen the train--which struck Min for a distance- of a1 quarter of a, • . .mile, if he had looked in that direction. .
    
      It also appeared that some cars were standing upon the track in a position where they would have hidden the approaching train from view at some points in the intestate’s progress across the crossing.
    
      Held, that the evidence was not sufficient to sustain a finding that the intestate had been free from contributory negligence.
    Appeal by the plaintiff, Susan Westervelt, as administratrix, etc., of James Westervelt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the Ytli day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term after a verdict rendered in favor of the plaintiff for $5,000, with notice of an intention to bring up for review an order entered in said clerk’s office on the 7th day of March, 1903, setting aside the verdict in favor of the plaintiff and dismissing the complaint.
    
      Arthur J. Burns, for the appellant.
    
      Charles C. Paulding, for the respondent.
   Willard Bartlett, J. :

The plaintiff’s husband, James Westervelt, while endeavoring to cross defendant’s railroad at Yonkers, on the morning of Sunday, May 4, 1902, was struck by one of the defendant’s trains running south, and almost instantly killed. This action was brought under the statute to recover damages for wrongfully causing his death. At the close of the evidence for the plaintiff a motion to dismiss the complaint was denied and the defendant rested without putting in any proof. The motion to dismiss was then renewed, and a motion was also made to direct a verdict for the defendant. The decision of these motions was reserved until after the verdict, and the jury found for the plaintiff, awarding her damages in the sum of $5,000. The learned trial judge subsequently set aside the verdict, stating that he did so not on the facts but. solely on the ground that the defendant was entitled to have a verdict rendered in its favor at the close of the evidence. There is a short opinion in the record, but it does not disclose what particular reasons influenced the court in thus setting aside the verdict.

Upon the present appeal the learned counsel for the respondent argues in support of the action of the court below that there, was not sufficient evidence to go to the jury on either branch of the case — the defendant’s negligence or the plaintiff’s freedom from contributory negligence. As to the first proposition I am unable to agree with him. There was proof enough to justify an inference of negligence on the part of the defendant’s agents and servants in charge of the train in failing to give any signal of its approach to the Yonkers station and the street crossing at which the plaintiff’s intestate was killed. It is true the testimony on this subject was by no means conclusive, but still if believed by the jury it would suffice to sustain a finding that no signal whatever was given, either by bell or whistle. Two witnesses testified on this subject, neither of whom appears to have borne any relation whatever to the parties. One of them swore that he was standing in . front of an office in a place where he could have heard the whistle blow or the bell ring on the train as it approached, and that he heard neither. “ If the whistle blew or if the bell rang I certainly could have heard it,” he said. The other witness testified: “ I heard the train go by, but I didn’t know whether it was a freight train or a coach until I walked out afterwards. ■ I did not hear any bell rung or whistle blown from that train.” This witness was only three or four hundred feet from the crossing on which the accident occurred. The learned trial judge in his charge, in commenting upon the testimony of these Witnesses, told the jury that the law did not attach much importance to witnesses who merely say that they did not hear a thing. No doubt this is true. He probably had in mind the doctrine laid down in Culhane v. N. Y. C. & H. R. R. R. Co. (60 N. Y. 133), which is so often cited in support of the proposition therein expressly laid down by Judge Allen that, “as against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to the jury.” But in the present case there was no testimony of any witness, credible or otherwise, to the effect that the bell was rung or the whistle sounded on the engine of the train which killed the plaintiff’s husband, though it is apparent that if either of those signals had been given the fact must have been known, either to the engineer or fireman or both.

I conclude, therefore, that the verdict could not have been set aside on the ground that there was not enough evidence to authorize the submission of the case to the jury, so far as the alleged negligence of the defendant was concerned. • A further examination of the record, however, in regard to the question of contributory negligence satisfies me that the proof was insufficient to show that the plaintiffs intestate was free from carelessness. The accident occurred just north of the station at Yonkers where Dock street crosses the defendant’s railroad. Mr. Westervelt came down Dock street from the north, going toward the river, and thus approached the tracks from the east. The railroad company maintained gates on each side of its line at this crossing, and these gates were down at the time, so that he had to bend down to pass under them ; but no negligence can be imputed to him from this circumstance, as the evidence showed that the gates were ordinarily kept down on Sundays. There are four tracks at this point. The witness who first saw Westervelt was a man named Strainline, who testified: “I first saw Westervelt when he first got over to that first gate. I saw him when he first got under the east side gate with a basket on his arm,, in a stooping position. That is the last I saw of him until I saw him laying there after the train struck him.” The deceased was also seen before the accident by McCann, an employee of the defendant, who was the night flagman at the foot of Dock street and had just gone off duty in the morning, and the flagman who succeeded him, a man named Larkin, who had just taken McCann’s place. McCann was standing with his back to the approaching train when he said he heard Larkin yell. At this McCann turned around to see what he was yelling about and saw a man coming across the crossing, with a market basket on his arm walking directly toward the train. He was walking directly across the crossing to the west side of the railroad, the river side.” This witness further testified as follows : “ When Larkin yelled out he said stand back, stay back. He had his hand up in the air; he was speaking to Westervelt, the man who was afterwards struck by the train.” Larkin’s testimony as to the conduct of the deceased was as follows : “ I stood at the south side of the west gate about two feet from the gate post when I first saw this man that was killed. He was then on the second track from the east side and I hollered at him to keep back. I saw him look at me and I motioned to him to keep back. He paid no attention to me, but kept on coming across and got across the west rail of the south-bound track when he turned around to see what was coming when he was struck. I do not know whether it was the cross-beam of the engine or the side of the car that struck him, twisted him around and knocked him down and killed him.”

It thus appears that the deceased was warned by the flagman on duty not to attempt to cross further when he was upon the second track, but that he continued on his way notwithstanding the warning and crossed the third track and even got over the fourth track upon which the approaching train was coming before he was struck. The testimony of Larkin indicates that he may have supposed that he was sufficiently far across to avoid contact with the train when he turned around and was hit. I do not see how we can very well avoid the conclusion that he was guilty of contributory negligence under the circumstances disclosed by this testimony. The proof shows that from the time when he first got within the gates on the east side of the railroad he could have seen a train approaching from the north when it was about a quarter of a mile distant if he had looked in that direction. It is true there is evidence'that some cars were standing upon the tracks in a position where they would have hidden an approaching train from view at some points in his progress westerly across the railroad, but the deceased was chargeable with knowledge of the fact that the presence of these cars would thus obstruct his vision, and his conduct must be judged accordingly. The circumstances are quite different from those presented in Noble v. N. Y. C. & H. R. R. R Co. (20 App. Div. 40 ; affd., 161 N. Y. 620), where the approach of the train was in fact concealed by intervening cars, but the presence of those cars was also concealed from the deceased by a heavy fog.

I think the proof on the subject of contributory negligence justified the disposition of the case which was made by the court below and that the judgment and order should, therefore, be affirmed.

Present — Goodrich, P. J., Bartlett,. Jenks and Hooker, JJ.

Judgment and order una-mmously affirmed, with costs.  