
    John H. Beckwith, as Adm’r, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    Negligence—Conteebutoby—Railboad cbossing-.
    Plaintiffs intestate, a boy of thirteen years, attempted to cross defendant’s track in company with an older brother. There was proof that the-latter looked both ways before attempting to cross, and not hearing or seeing anything, told decedent to come, and, as they hurried across, decedent was killed. Held, that there were facts and circumstances which tended to show that the accident might have occurred without the negligence of the decedent, and that it was for the jury to say what inferences should be drawn from the facts and circumst.'.nces disclosed by the evidence.
    
      Appeal from a judgment entered in Oneida county on the verdict of a jury, and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge.
    
      G. D. Prescott, for app’lt; S. Cromwell, for resp’t.
   Martin, J.

The evidence and facts in this case are substantially identical with those in the case of Joseph H. Beckwith, by his guardian, against the defendant, (post), which was submitted at the same time with this case, except that in that case the plaintiff testified that he looked both ways before attempting to cross defendant’s tracks, and neither heard nor 'saw the approaching train, while in this case the plaintiff’s intestate was killed and could not testify. In the case at bar there was no direct evidence that the decedent looked or listened before attempting to make this crossing. There was, however, proof that the decedent was about thirteen years of age; that he was in company with his older brother; that his brother looked both ways before attempting to cross ; that not seeing or hearing the approaching train he told the decedent to “ come on,” and they hurried across.

The only question we need specially consider in this case is, whether, in the absence of direct proof that the decedent looked and listened before attempting to cross the defendant’s track, the plaintiff so far failed to show that his intestate was free from contributory negligence as to require the trial court to hold, as a matter of law, that the plaintiff was not entitled to recover.

In Tolman v. Syracuse, Binghamton & New York, R. R. Co., 98 N. Y., 203, Finch, J., in delivering the opinion of the court in that case, said: “ The burden of establishing affirmatively freedom from contributory negligence may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury, and require a choice between possible, but divergent, inferences.”

In this case there were facts and circumstances which, at least, tended to show that the accident might have occurred without the negligence of the decedent, and, we think, it was for the jury to say what inferences should be drawn from the facts and circumstances disclosed by the evidence. Newell v. Ryan, 40 Hun, 286, 290; Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y., 234, 243; 20 N. Y. State Rep., 904.

An examination of the defendant’s exceptions as to the admission of evidence, and to the judge’s charge, has failed to disclose any error which requires a reversal of this judgment, or that would seem to require special discussion. We think the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J, concur.  