
    (68 Hun, 495.)
    RAINEY v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    1. Accident at Railboad Crossing- —Violation ob City Ordinance—Gates.
    A violation of a city ordinance requiring a railroad company to close gates rat grade crossings one minute before a locomotive passes over them does not establish a canse of action against the railroad company for the hilling of a human being at such a crossing, but it is'evidence bearing on the question of negligence.
    2. Same—Failure to Ring Bell—Negative and Positive Evidence.
    In an action against a railroad company for the killing of plaintiff’s intestate, one of plaintiff’s witnesses testified that the accident occurred between 8 and 9 o’clock in the evening, that he stood within three or four feet of the track, and that he did not notice the approach of the train which he testified ran over deceased, or hear the .bell ring. Defendant proved that only three trains passed over the crossing in question during the hours stated by plaintiff’s witness, and the engineers and firemen on these trains testified that they did not run oyer any one to their knowledge, and that the bells on their respective engines were rung. Held, that plaintiff had not established the failure to ring the bell, since positive testimony that the bell was rung could not be overcome by mere negative testimony of failure to hear it, without showing that the witness had.his attention directed to that fact at that time.
    8. Same—Contributory Negligence—Evidence.’
    Plaintiff’s witness further testified that deceased, before crossing the track, stopped and looked both ways, started to cross, and just as he had gotten over the last rail, was struck by the approaching train, and “whipped out of sight.” This witness further testified that he went home by a circuitous route, and went to bed, without looking for deceased, who had been his neighbor and friend for many years, and without saying a word to any one about the accident. It further appeared that an approaching train could be seen from either side of the track for several hundred feet before it reached the crossing. Held, in view of the incredible nature of the evidence of plaintiff’s witness, the only person who claimed to have seen the accident, that the complaint should have been dismissed for plaintiff’s failure to sustain the burden of proof resting on her to show the freedom of deceased from contributory negligence. O’Brien, J., dissenting.
    4. Same—Instructions.
    The evidence in the case required the court to charge that plaintiff could not recover if deceased could have seen an approaching tram from a point 10 or 15 feet distant from the nearest rail, or at any point between that and the rail, and before he went on the track; and such an instruction should not be refused as being an expression of opinion by the court on the facts.
    5. Same—Failure to Operate Gates—Knowledge of Deceased.
    If deceased knew that the gates were not operated after 7 o’clock in the evening, he was not entitled to rely, on approaching the track for the purpose of crossing, or attempting to cross, on any protection ■ from the gate.
    
      Appeal from circuit court, New York county
    Action by Sarah Rainey, administratrix, etc., of John H. Rainey, deceased, against the New York Central & Hudson River Railroad Company, for the killing of plaintiff’s intestate. From a judgment entered on a verdict of $5,000 in plaintiff’s favor, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ..
    Frank Loomis, (D. W. Tears, of counsel,) for appellant.
    Wales F. Severance, for respondent.
   FOLLETT, J.

This action was brought to recover damages sustained by'the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s employes in the management of a train when passing a highway crossing. In the Twenty-Third or. Twenty-Fourth ward of the city of New York the defendant’s railroad crosses, at grade, a highway known as the “Spuyten Duyvil Road,” and the crossing is called the “Spuyten Duyvil Crossing.” At this place the railroad consists of two tracks of the gouge of four feet and seven tenths of a foot. The two tracks are eight feet and one tenth of a foot apart, making the distance between the outermost rails of the track seventeen feet and a half. The highway extends along the westerly side of the railroad for some considerable distance; then crosses it, and extends along the easterly side of the railroad. The next crossing towards New York city is Riverdale avenue crossing, which is 1,470 feet northerly of Spuyten Duyvil crossing. The railroad above and below Spuyten Duyvil crossing is very crooked, so that trains bound for New York run nearly north for some little distance. It is asserted on the part of the plaintiff that her intestate, John H. Rainey, was struck at this crossing between 8 and 9 o’clock in the evening of January 4, 1892, by a New York bound train. About 9 o’clock of that evening he was found lying with his skull fractured, about 150 feet north of the Spuyten Duyvil crossing, on the east side of the railroad, near a fence. He was lying on his back, with his head towards the crossing last mentioned, and with his feet towards Kingsbridge. He was unconscious, and died within two days without regaining consciousness. The negligence sought to be established on the trial consisted of two omissions on the part of the defendant: (1) Neglecting to comply with an ordinance of the city of New York requiring the defendant to maintain gates on both sides of its grade crossings, and to attend them at all times when trains were passing, and close them at least one minute before a locomotive passed over the crossing; (2) neglecting to ring the locomotive bell on approaching the crossing.

It was proved, and was not disputed, that defendant maintained gates at this crossing, which were opened and closed as required between the hours of 7 o’clock in the morning and 7 o’clock in the afternoon, but that they were left open without the presence of gatesmen between the hours of 7 o’clock in the evening and 7 o’clock -in the morning. Proof of the violation of a city ordinance does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. McGrath v. Railroad Co., 63 N. Y. 522; Kunpfle v. Ice Co., 84 N. Y. 488; Moore v. Gadsden, 93 N. Y. 12; Connolly v. Ice Co., 114 N. Y. 104, 21 N. E. Rep. 101; McRickard v. Flint, 114 N. Y. 222, 21 N. E. Rep. 153. The evidence in the case at bar simply shows a'violation of the ordinance of the city, but there is no evidence that the trains were run at an unusual rate of speed, that the vicinity was thickly inhabited, or that the highway crossing was much used during the nighttime. The fact that two of the trains were one minute late is not important, and the evidence is quite conclusive that there was a clear view of trains approaching from either direction for six or seven hundred feet. The evidence in the record is not sufficient to sustain a judgment on the first ground of negligence above stated.

Only one witness, Robert McGregor, testified to seeing the accident. He and Rainey had been neighbors for several years. He testified that about 4 or 5 o’clock in the afternoon of January 24th. he went to Rainey’s house, stayed awhile, and they then went out to walk, and entered McArdle’s saloon, which is about 200 yards from the crossing, on the west side of the railroad;. the decedent’s house being on the east side thereof, and within, a thousand feet of the crossing. The witness says he left Rainey :at the saloon, but seems quite uncertain as to the time. He testified that his house was about 10 minutes’ walk away, and that he reached his home at 6 o’clock, or 8 or 9 o’clock. He says that he removed part of his clothing, and lay on a bed until about 8 o’clock, when he went out by appointment to meet Rainey. . He says that the night was dark; that he went down'to the crossing on the east ■side of the railroad, and was about to cross to the west side, when he saw Rainey coming towards him from the west; that he (the -witness) stood about 3 of 4 feet from the east rail of the east track, and that Rainey was about 30 feet away on the west side ■of the track, which places him about 10 feet west of the outer •rail of the west track. - Trains bound for New York run on the -west track. The witness testified that Rainey, when near the track, stopped and looked both ways, started to cross, and, just as 'he had passed the east rail, of the west track, a New York bound -train struck him;, “that he was whipped out of. my sight.” The -witness testified:

“I did not hear any bell rung bn the engine when it went by or as it ap•proached the crossing. My hearing 'is pretty fair. There was no warning -whatever given oí the approach oí that train that I heard. The crossing was not guarded by anybody at the time of the passage oí that train. There was no watchman or gateman there.”

This was the only evidence offered to sustain the second alleged ground of negligence above stated. The witness does not' attempt to identify the train which caused the injury. Defendant’s telegraphic operator, who was stationed at that time in the Spuyten Duyvil tower, testified that the only trains that passed over the road bound for New York between 8 and 9 in the evening of January 24th were No. 222, which passed at 8:21, one minute late, No. 6, which passed at 8:30, one minute late, and No. 30, which passed at 8:58. The conductor and fireman of No. 222 testified that this train did not strike any one to their knowledge, and the fireman testified that the bell was rung all the way between Spuyten Duyvil station and Kingsbridge station, and while passing the crossing. The conductor, engineer, and fireman of No. 6 testified that their train did not strike any one to their knowledge, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing. The conductor, engineer, and fireman of No. 30 testified that their train did not strike any one to their knowledge on that trip, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing. The accident happened on the 24th of January, 1892, and the trial was had November 29th of the same year. Thus stood the evidence bearing upon the second alleged ground of negligence.

“As against positive, affirmative evidence of credible witnesses of 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. It must appear that their attention was directed to the fact at the time.” Culhane v. Railroad Co., 60 N. Y. 138; McKeever v. Railroad Co., 88 N. Y. 667; Stitt v. Huidekopers, 17 Wall. 384; Whart. Ev. § 415. The witness McG-regor, who testified that he did not hear the bell, ring, stood on the crossing, within three or four feet of the track, but his attention was not drawn to the approaching train by its headlight or by its noise. His testimony, under such circumstances, that he did not hear a bell,/is entitled to no weight. Section 7, c. 282, Laws 1854, which provides that a bell shall be rung, or a whistle sounded, on locomotives for at least 80 rods before crossing a highway or street, and makes railroad corporations liable for all damages sustained by any person by reason of neglecting this duty, was repealed by chapter 593, Laws 1886. Lewis v. Railroad Co., 123 N. Y. 496, 26 N. E. Rep. 357; Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256. The evidence of this witness is, to say the least, extraordinary. He and Bainey were neighbors and friends, and had lived near each other for several years. He testified that he saw the train strike Bainey and carry him away, and, without going to look for him, he went home, not by the usual route, but by a circuitous one, took off a part of his clothing, and went to bed; “that he might have slept;” and while in bed his son informed him that Bainey had met with an accident; that he then went to Bainey’s house between 10 and 11 o’clock, and saw him. We will give the witness’ explanation of his most singular conduct in his own language:

“Tlie reason that I done that was that I got frightened. I thought the man was all cut up. I was afraid. Not only that, but I was afraid of meeting anybody by going the regular road. To avoid meeting any person or seeing any one, X passed over the track, and went home the back way.”

This is so contrary to the usual conduct oí men that it is incredible. The evidence of the absence óf contributory negligence on the part of the decedent is all furnished by this witness. He testified that as he stood on one side of the railroad, and Rainey on the other—

“He [Rainey] looked first towards Spuyten Duyvil; I tliink he did. I am not sure I saw him stand and look up and down the track. I think he looked first toward Spuyten Duyvil, and then turned his head towards 42d street, or Riverdale crossing. At that time I did not see the train. I am quite sure of it. I neither saw nor heard it at that time.”

Upon the important question of the freedom of the plaintiff’s intestate from contributory negligence, the senses of the witness were all alert. He brought the case within the decisions, but he was not sufficiently attentive to see the headlight or hear the noise of the approaching train. Could he or Rainey, had they been attentive, have seen or heard the train? The witness testified that, standing where Rainey stood, the approaching train could have, in daylight, been seen not more than 100 or 150 yards, but “if you were standing on the other side [where the witness stood] you couldn’t see it 50 yards.” At another place in the record the witness testified that he might have heard the train when it was within one or two hundred feet from him. The witness does not claim to have made any test as to the distance a train could be seen from the crossing. A map is in evidence which shows that the track is substantially straight for some distance on both sides of the crossing. Haviland, an engineer sworn for the defendant, testified that, standing on the crossing 10 or 15 feet west of the westerly rail, a train could be seen 750 feet away, and that, standing 34 feet west of the rail, an approaching train could be seen 597 feet from the crossing; that the nearest building was 350 feet away from the crossing. Curtis, another engineer, testified to the same state of facts. Under the evidence, as it appears in the record, the plaintiff failed to sustain the burden which was upon her, of showing that her intestate did not contribute to the accident. It may be observed that the decedent was 38 years old, and it was not shown that his eyesight or hearing had been impaired. Upon the evidence as it stood the court erred in refusing to dismiss the complaint. The court was asked to charge:

“I ask your honor to charge that if John Rainey, when he stood at a point ten or fifteen feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train.the plaintiff cannot recover. The Court: I refuse to charge that, because I think that calls for an expression of opinion on the part of the court as to a fact. I charge the jury that that is a circumstance which they may take into consideration in making up their minds as to whether John Rainey was or was not guilty of contributory negligence. Defendant’s Counsel: I except to your honor’s refusal to charge as requested, and to the qualification. Defendant’s Counsel: I ask your honor to charge that, if the fact was known to John Rainey that the gates were not operated after seven P. M., he was not entitled to rely, in approaching the track for the purpose of crossing, or attempting to cross, upon any protection from the gates. The Court: I refuse to charge further upon that subject than I have airead; charged. (Defendant excepts.)”

Both requests should have been granted. There might be circumstances which would make it proper to refuse the first request, but under the evidence in this case it was not. On the second proposition the court had given no instructions to the jury in its charge. No allusion had been made to the fact that Rainey had lived at Spuyten Duyvil for nine years, and in the Riley house for eight months, and must or might have known within what hours the gates were operated. The judgment and order should be reversed on the exceptions and on the facts, and a new trial granted, with costs to the appellant to abide the event.

VAN BRUNT, P. J.

I concur. There is no question but that McGregor did not see the accident, and there is therefore no proof in the case that the deceased was free from contributive negligence.

O’BRIEN, J.

I concur in result upon the ground of the refusals to charge pointed out in the opinion upon the case, and I think the question of plaintiff’s right to recover was properly submitted upon conflicting evidence to the jury; and, were it not for the other errors pointed out, I would favor an affirmance of the judgment.  