
    Rebecca Sutherland, as Administratrix, etc., of Mark Sutherland, Deceased, Respondent, v. The Troy and Boston Railroad Company, Appellant.
    
      Contributory negligence — insufficient proof thereof.
    
    In an action brought to recover damages for injuries sustained by the plaintiff’s intestate through the alleged negligence of a railroad company, the obligation rests upon the plaintiff to establish the fact that her intestate was free from contributory negligence. ,
    Evidence that the intestate, an engineer, upon frequent occasions ran his engine at a rate of speed greater than was permitted by the rules of the company; that some other engineers had done the same thing, and that warning had been given that they must not exceed the rate of speed prescribed, by the rules of the company, as bearing upon the question whether the plaintiff’s intestate was free from contributory negligence, considered.
    Appeal by tbe defendant, Tbe Troy and Boston Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Rensselaer on tbe 26th day of April, 1893, upon tbe verdict of a jury rendered at tbe Rensselaer Circuit, and also from an order entered in said clerk’s office in January, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes.
    
      T. F. Hamilton and John H. Peck, for the appellant.
    
      Warren, Patterson & Faulkner, for tbe respondent.
   Herrick, J.:

This case lias been several times before tbe court. Tbe Court of Appeals (35 N. Y. St. Repr. 853) held that upon tbe evidence tbe plaintiff was not entitled to recover because she “ did not meet tbe obligation resting upon her of presenting a case from which tbe jury could fairly find that her intestate was free from any negligence which contributed to his death.”

Upon this last trial there was some evidence presented upon the question of contributory negligence in addition to that which appeared in tbe case when it was before tbe Court of Appeals, but from a careful reading of tbe case I cannot see that the facts are substantially different from wlmt they appeared to be then. Under the ruling of the Court of Appeals, it seems to me that the plaintiff has failed now, as she did then, to establish the fact that her intestate was free from contributory negligence. Instead of meeting the obligation that devolved upon her of proving a lack of negligence, the evidence strongly points directly the other way, and that but for the intestate’s own negligence' and violation of the rules of the company, this accident would not have happened.

While upon this last trial there is evidence showing that the intestate upon frequent occasions ran his engine at a rate of speed greater than was permitted by the rules of the company, and that some other engineers had done the same thing, it also appears that ■in addition to these rules warning had been given and posted upon the bulletin for the inspection of engineers, that they must not exceed the rate of speed prescribed by the rules of the company. It seems to me, upon the evidence in the case as it now appears, that, within the former decision of the Court of Appeals, the plaintiff is not entitled to recover. The judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurred ; Putnam, J., not acting.

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