
    Second Department,
    June, 1906.
    Olivia Odell, as Administratrix, etc., of William H. Odell, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—pedestrian killed by train at railroad crossing,— evidence as to warning signals — relative value of testimony.
    
    Judgment and order denying motion for new trial affirmed, with costs.
   No opinion.. Hirschberg, P. J.’, Woodward and Hooker, JJ., concurred. Jenlcs, J., read for reversal, with whom Millet, J., concurred. Older granting extra allowance reversed, without costs, for want of power in the trial court to grant the same. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. — Appeals -by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 29th day of November, 1904, and from two- orders entered in said clerk’s office on the 28th and 30th days of November',-1904, -respectively.

Jenks, J. (dissenting):

The action is for negligence.. Between nine and ten a. m. of November 21, 1902, the .intestate, attempting to pass over a grade crossing of -the defendant’s railroad tracks in the village of Fishldll, was ' struck and instantly killed by the locomotive engine of the defendant’s passenger train, known as the Empire State Express. The negligence cliarge'd- by the complaint is that the defendant ‘ ‘ moved and approached its aforesaid express train toward, upon and over the Main street crossing ata high and dangerous rate of speed without giving to the plaintiff’s intestate any suitable or sufficient warning or indication; by bell and whistle orxotherwise, of its approach to the aforesaid crossing with intent to cross the same, and in failing to provide, .by rule or otherwise, for a suitable and sufficient announeementof the approach of its north-bound express trains to the crossing aforesaid.” The learned court charged the jury that they had- a right to take into consideration (after referring to the location, condition and use of the crossing) “ whether the defendant’s servant,-the' locomotive engineer, was guilty of negligence in not ringing his bell, if ho did not ring it, or in notdilowing the whistle, if he did not blow it, in approaching such a crossing as that-,” and continued: ‘‘ If he did ring the bell or blow the whistle there was really nothing else that he was called upon to do, and there is no other act of negligence charged. That is one of the vital points of this case.” There was no exception or request, that touched upon this part of the charge, which thus construed the complaint and thus defined the theory of the plaintiff. I think that the proof of this alleged neglect is not sufficient to support the verdict.. A few moments before the accident the intestate paused on his way towards the tracks to accost two young lads. They were within eight or ten feet of the intestate when, he was killed. All of the witnesses who testified as to the signals were called by the. plaintiff. I should add, however, that the testimony of the engineer on this subject was elicited on cross-examination. Tiie lad Pearsall testifies: “Up to the time the accident occurred I heard no whistle blown from this train nor any bell rung.” The lad.Secor testified: “ Up to the time he w'as killed I did not hear any whistle blown by the train nor any bell rung.” Mr. Vanderberg, who stood at a window in the second story of an adjacent machine shop, after testifying that there were no gates, and that there was no flagman, continued: “There were no bells or signals.” But on cross-examination he testifies: “ When the Empire State Express was approaching there was a whistle down there to the whistling post below the overhead bridge. It was the locomotive whistle. That was before the Empire State Express passed the bridge. South of the bridge is where she blowed. I saw the traiu go through the bridge.” When asked, on redirect examination, whether lie wished to be understood as testifying that the whistle proceede 1 from that particular train, he answered: “ I took it for that train. As a matter of fact, when I heard this whistle I could not see this train, and had not seen it up to the time I heard the "svhistle.” He added that it -was not possible where he stood to see it even if the whistle had been blown at the whistling post. He also testified that there' are railroad yards to the south and in the vicinity where he heard the whistle sound, and that cars were switched and locomotive engines moved in the yards, and that it was a common thing to hear whistles from that direction. He testifies that he did not hear the engine in question blow the whistle from the time it reached the bridge, or hear it ring any bell. He then testified, on recross, that as the train went under the bridge steam was escaping from the smokestack of the locomotive engine; nothing was coming from the whistle, and continued: “It seemed to be-a second after I heard the whistle that the train came through the bridge, almost immediately. I heard the signal.” A reading of this testimony shows that when the witness testified “ There were no bells or signals,” he referred to the precautions provided by the defendant at this crossing, and not to precautions observed by the engineer of this train, for he was speaking of the former matters, and had just testified there were no gates, there was no flagman, and then continued, “ there were no bells or signals.” And his testimony thereafter given, which I have just detailed, relates to what he observed in respect to the signals from that train on that occasion. The engineer' of the locomotive testifies that he blew the whistle between the bridge and the crossing; that at the whistling post he blew it for five seconds; that after he blew the whistle he started the bell, which worked by compressed air, and rung until the air was turned off, and that the bell continued to ring until he ordered the fireman to turn off the air when he had stopped the train after the accident, and its ringing prevented his hearing the conductor, who was then talking with him. Analysis of the evidence shows that the two lads gave entirely negative testimony. It does not appear that they were “looking, watching and listening for it; that "their attention was directed to the fact, so that the evidence will tend to some extent to prove the negative,” to quote the words of Allen, J., writing for the court in Culhane v. N. Y. C. & H. R. R. R. Co. (60 N, Y. 133). It is true that in Greany v. L. I. R. R. Co. (101 N. Y. 419) the court say that one might be neither looking n >r listening, and yet his position be such and the surrounding circumstances so favorable that his testimony might be of equal or greater persuasive power than that of one who both looked and- listened under circumstances disadvantageous. And it might be argued with reference to these young lads who gave negative testimony that although there is no proof that either looked or listened, or that their attention was directed to the fact of signals, yet, as they were within eight or ten feet of the accident, their position was such as to enhance the value of their negative testimony. And yet this argument based on position may be materially weakened by the criticism that the attention of the lads was not upon the train, but was fixed upon the intestate. For Pearsall testifies that he looked and saw the train and then “hollered” to the intestate, but when he thus cried out the intestate was looking north, and he also testifies that he saw the intestate step onto the track. Such, too, is the testimony substantially of the other lad. It is but natural that, after seeing the train, the attention of any one in such close proximity to the' intestate would have been drawn to and riveted upon him as that human being who was so close to a peril and whose immediate conduct must so largely determine whether he would encounter it. The qualification expressed in Greany’s Case (supra) was applied to passengers on the train who presumably could not have had their attention diverted by the peril of the person who attempted to cross .in front of the locomotive engine of their train... Further analysis of the evidence as to signals shows that opposed'to the negative testimony which I have just considered is the testimony of Mr. Yanderberg which I have heretofore detailed,-.who finally testified that “It seemed to he a second . after I heard the whistle that the -train came through the bridge, almost. immediately. I heard the signal;” and of the dngineer whose testimony I have also detailed, and who is positive that he whistled at the whistling post, and that- he gave a whistle between the bridge and the crossing, and that the bell was rung continually. The whistling p ist- was 3,588 feet from the crossing where the accident happened, and the bridge 1,000 feet therefrom. The train, according to the evidence, took thirteen seconds to pass from the -bridge to the crossing.- Tlie intestate,was walking; he stopped within 8 or 10 feet of the rails to talk with the lads; he then walked on his ivay. Mr. Yanderberg says that he halted oncé again, and that he was then but 3 or 4 feet from the track, -and the lads say that he walked onto the track. If the whistle was sounded add the bell was rung,"as testified to, then it seems that such warning was timely. Of course, as was observed in Greany’s Case (supra), the fact that the best evidence was that of the engineer, an employee of tlie defendant, did not require the plaintiff to put her case in his hands to the exclusion of secondary evidence. But the engineer is so far sustained by the disinterested witness, Mr. Yanderberg, that I think that the plaintiff, who must depend upon the negative, testimony of the two lads, should not prevail. I do not say that the question was not for the jury, bu.t I do say that I am dissatisfied with the verdict as against the weight ór pre- ■ ponderance of evidence upon the point pronounced “ a vital one ” by the learned court, and I, therefore, advise that ;tlie judgment and order sheiuld be reversed and a new trial granted, costs to abide the event. (McDonald v. Met. St. R. Co., 167 N. Y. 65.) Miller, J., concurred.  