
    Hattie Krauss, Adm'rx, Resp't, v. The Wallkill Valley Railroad Co., App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Negligence—Contributory.
    Plaintiff's intestate, while attempting to cross a switch track laid by defendant to the mill where he was employed, between two cars standing thereon, was injured by their being pushed together by a train which was slowly moving on the track to leave cars for the mill. It appeared that he could have seen down the track 200 feet. It was not shown that he looked before stepping on the track. Held, that plaintiff failed to show the absence of contributory negligence, and that it was error to submit the case to the jury.
    
      Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Plaintiff’s intestate was employed in a cement mill, to which defendant had laid a switch track to facilitate the loading and taking away of cement and the delivery of supplies to the mill. Intestate was accustomed to take his tools to the blacksmith shop on the other side of the track to be sharpened before the close of the day, and on the day of the accident had done so, and was returning, when, in attempting to pass between two box cars, which were standing with a space between them, they were pushed together by a train of freight cars, and he was injured. The train was moving at the rate of four and a half miles an hour, and had entered the switch for the purpose of delivering cars to the mill. The court, on request, charged that the circumstances did not prove that intestate looked to see if a train was coming, and refused to charge that without such proof the presumption was that he did not, or that it was incumbent on plaintiff to prove that he ■did look and listen.
    
      Ashbel Green {F. L. Westbrook, of counsel), for app’lt; William Lounsbery, for resp’t
   Per Curiam.

We think failed to show the absence of contributory negligence on the part of the deceased ; the testimony in the case rather tending to establish his carelessness. The train was backing slowly; Krauss was walking across the track; there were but two box cars between him and the slowly moving train. He could see down the track two or three hundred feet. Had he looked before he stepped on to the track between the two -cars, it is difficult to understand how he could have failed to see at least the nearest end of the approaching train. All the evidence given in the case indicates negligence on the part of the ■deceased.

' If, however, the testimony does not absolutely show the contributory negligence of Krauss, it certainly fails to establish his freedom from negligence. Hence, we think, the case should not have been submitted to the jury. In the absence of evidence éxonerating the deceased from contributing, by his own negligence, to the accident, no case was made for submission to the jury.” Borden v. D., L. & W. R. R. Co., 131 N. Y., 671; 43 St. Rep., 935; Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y., 425; 36 St. Rep., 405.

It is well settled that the omission of a railroad company to ■give statutory or other signals, or exercise proper care, does not excuse one crossing a track from observing care on his own part. Cullen v. D. & H. C. Co., 113 N. Y., 667; 23 St. Rep., 719.

This view of the case renders it unnecessary to discuss the other questions raised.

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

Mayham, P. J., and Herrick, J., concur.  