
    Orazia Drago, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    July 12, 1910.
    Railroad — negligence — injury at grade crossing — failure to show freedom from contributory negligence.
    It is negligent for a railroad to run a locomotive across a public street at night without a lighted headlight and without ringing a bell to warn pedestrians. But a pedestrian, who was struck by such locomotive while attempting to cross the street, Cannot recover where she gives no evidence that she did not know that the locomotive was approaching, even "though the evidence shows that she" looked both ways when about to cross.
    Here testimony that she cannot remember the circumstances of the accident does not excuse proof of freedom from contributory negligence where it is not shown that she was injured so as to impair her memory or is incapable of describing her acts.
    Kruse, j., dissented, with memorandum.
    Appeal by the plaintiff, Orazia Drago, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Erie on the 21st day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s cáse on a trial at the Erie Trial Term.
    The action was commended on the 23d day of December, 1907, to recover damages resulting from personal injuries sustained by the plaintiff, alleged to have been caused, solely through the negligence -of the defendant.
    
      Horace O. Lanza, for the appellant.
    
      Alfred L. Becker and Hugh E. Rourke, for the respondent.
   McLennan, P. J.:

The evidence produced on the part of the plaintiff • established that the defendant was moving or operating a train of cars along Church street, which extends easterly and westerly through the city of Buffalo ; that at the time of the accident, which occurred at about eight o’clock in the evening of the 1st day of September, 1906, the plaintiff assumed to cross the defendant’s tracks, walking along Birdsall street, and was struck by an engine hauling a passenger train of the defendant from the east. There was no headlight burning upon the engine, and the evidence tends to show that no bell was rung or whistle blown to indicate the approach of such train at the crossing in question, so that we have no difficulty in reaching the conclusion that the defendant was guilty of actionable negligence in running its engine across the crossing in question without a lighted headlight and without ringing the bell to apprise pedestrians seeking to use such crossing that its engine or train was approaching.

The serious question, however, presented by this appeal is, did the plaintiff show herself free from the charge- of contributory negligence ? Witnesses called on behalf of the plaintiff testified that as she got within a certain distance of the crossing she was seen to look both ways, presumably for the purpose of ascertaining whether or not a train or engine was approaching the crossing which she was about to cross. Whether or not she saw the train approaching upon making such observation does not appear. It does appear that without any further care or observation she walked onto the track, was struck by the defendant’s train and, we will assume, was in jured, although nothing appears in the evidence to indicate the injury. As bearing upon the question of plaintiff’s conti’ibutory negligence it is testified that at a certain point as she approached the crossing in question she looked in either direction. Whether or not she discovered that a train was approaching and took her chances of passing in front of such train does not appear.. It does appear without contradiction that the train was making such noise as to notify any traveler upon the highway that it was approaching the crossing, and it does not appear that the hearing of the plaintiff was not normal in all respects. The plaintiff approached this crossing when, as we will assume, it was dark. While the headlight of the engine was not lighted, there is nothing to indicate that the plaintiff did not know of the approach of the engine which came in contact with her. Her only evidence upon the subject is that she does not remember anything concerning the happening of the accident. She does not produce any evidence tending, to indicate that she was injured in such manner as to impair her memory, or that she was incapable of describing what she did .or did not do which would relieve her from the charge of contributory negligence in the premises.

The courts have gone a long way in holding that where a plaintiff’s intestate has been killed, thus rendering impossible the giving of testimony by such intestate, inferences may be indulged to the effect that such intestate was free from contributory negligence. But we know of no case where it' has been held that the injured party may be excused from giving evidence tending to free such party from the charge of contributory negligence by simply saying that he or she cannot remember as to the circumstances or facts of the accident, without giving any evidence that such want of recollection was caused by the accident which is complained of.

In the case at bar the evidence tends to show without contradiction that when the plaintiff went upon the tracks of the defendant she knew or ought to have known, in the exercise of. ordinary care and prudence, that the train which struck her was approaching such crossing. The rumble of the train was of itself sufficient to give such warning. The electric lights in the vicinity were such as-to enable travelers upon the crossing to discover the approach of a moving train, notwithstanding we 'may assume that the headlight was not burning and that the bell was not ringing. ■ If the . plaintiff had established by her evidence that she did not see the train in question approaching after having taken due care to have discovered its approach, or that she had exercised any degree of care in attempting to avoid collision with such approaching train, there might be some ground for the appellant’s contention. .But it . seems to me that no case has gone so far as to hold that a plaintiff has established freedom from contributory negligence by simply stating that he or she failed to remember anything respecting the accident which is the subject óf controversy, and without giving any explanation as to why such lack of memory occurred.

Under all the circumstances disclosed by the evidence in this case I think the learned trial court properly held that the plaintiff had failed to establish freedom from contributory negligence, and that, therefore, the motion for a nonsuit was properly granted.

All concurred, except Kruse, J., who dissented, in a memorandum.

Kruse, J. (dissenting):

While the evidence regarding the plaintiff’s carefulness in approaching and going upon the crossing where the train struck her is not very satisfactory, I am inclined to think it sufficient to make the question of her contributory riegligence one of fact.

The statement of her son that the plaintiff before the accident was in good health, and her eyesight fine, should be taken in connection with the fact that she was seventy-six or seventy-eight years old, and unable on the trial, as she testified, to remember anything of the accident.

By the testimony of others it appears that the train approached without ringing the bell or other signal; it was after dark, but there was no headlight; she looked twice in the direction from which the train came before going upon the track; once, when she was‘near the curb of the street across which the train came, and again between the curb and the track.

The inference is permissible that the train was not then in sight, either because it had not come in view around the curve or that she was .unable to see it because there was no headlight.

She then started diagonally across the street northerly and was struck at the northerly rail of the track upon which the train came. She was walking, but there is no evidence as to the speed of the train. Counsel for the defendant states in his brief that the presumption is that the defendant was obeying the city ordinance and not running faster than six miles an hour.

Whether the train was running fast or slow, there can be no doubt of the negligence of the defendant in approaching this crossing after dark without light or warning. These circumstances may also be taken into account in determining the question as to whether the plaintiff herself was careless. While of course a person in approaching a railroad crossing must look and listen before going upon the track, and do so intelligently and with reasonable care, yet I think the circumstances may be such that he may to some extent at least, rely upon the fact that otdinarily trains do not approach a crossing without warning and that engines are not usually run after dárk without a headlight. '

I think we must assume that the plaintiff is truthful in saying that she is unable to recollect anything of the accident. Her statement is not so inherently improbable that it can be disregarded upon a motion, for a nonsuit. Whether that inability arises from the accident or otherwise, I can see no difference in principle between such a case and a death case or one where a person by •reason of immature years,, .lack of intelligence or other infirmity, is unable to give an account of the' accident.

I think the case .should have been submitted to the jury.

Judgment affirmed, with costs. ■  