
    Charles J. Paige, as Administrator, etc., of Theodore J. Paige, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Third Department,
    March 7, 1906.
    Negligence — infant in arms killed by train while being carried across tracks — no recovery when attendant of infant guilty of contributory negligence— facts showing such contributory negligence.
    There can be no recovery for the death of an infant, nineteen months of age, who while being carried across railroad tracks Was struck and killed, when the negligence of the person carrying such infant contributed to the accident.
    When itis.shoWn that the person carrying such infant on approaching the crossing looked east and west and saw a train coming from the west on the nearest track, V and having crossed that track was struck by another train coming from the east on the next track, down'which there was an unobstructed view for 2,400 feet, such person is guilty of contributory negligence as a matter of law, and ■ a recovery for the death of said infant will he reversed.
    Appeal bv the defendant, The Hew- York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the . county of Schenectady on the 22d day of September, 1905, upon the verdict of a jury for $1,200, and also from an order entered iri said clerk’s office on the 19th day of September, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The action is brought by the administrator and father of the infant, Theodore J. Paige, to recover for loss occasioned by the death of such infant through the alleged negligence of the. defendant railroad company. The death occurred oil the 22d day of December, 1902. The infant at that' time was nineteen months of age and was then in the care of his grandmother, Theresa Hatch' who was about forty-eight years of age. On - that day, at about three o’clock in the afternoon, she, with the deceased in her arms attempted to cross from the northerly to the southerly side of the defending railroad company’s. tracks at a crossing where Congress street intersects such tracks in the city of Schenectady. There was at that time a freight train coming' from the west on track 4, which was the one nearest to her. It was a dark, wet, muggy day, and the wind was blowing from the west. As she approached the tracks, she stopped and looked to the east and to the west, the train on track 4 being then, as the plaintiff claims, about 400 feet west of the crossing. She then proceeded across track 4, and was just about to step on track 3 when she was struck by a freight train coming from the east on that track, and both she and the infant were killed. It is claimed that no whistle was blown on the train which struck her as it approached the crossing, nor when it passed the whistling post, which was about 1,000 feet east thereof. There is also evidence that no bell was rung as the train approached the crossing, although the engineer testified that the bell at that time was ringing automatically. The train which struck the deceased consisted of a heavy freight train going down grade at the rate of about eighteen miles an 'hour. The freight train on track 4 was going east at the rate of about four miles an hour. An action was brought by the administrator of Theresa Hatch, the grandmother of the infant, against 'the said defendant, for negligently causing her death, which was tried before Mr. Justice John M. Kellogg and a jury, and resulted in a verdict for the plaintiff. The defendant moved, upon the minutes of the court for a new trial, which was granted. The plaintiff appealed from such order to this ■ court, which on January 3,1905, affirmed the same, but without any opinion (Hatch v. N. Y. C. & H. R. R. R. Co., 101 App. Div. 611, affg. 42 Misc. Rep. 152). .Hpon the trial of this action the jury rendered a verdict in favor of the plaintiff for $1,200, and from the judgment entered thereon, and from an order denying a motion for a new trial thereof, this appeal is taken. Further facts appear in the opinion of the court.
    
      S. W. Jackson, for the appellant.
    
      John D. Miller, for the respondent.
   Parker, P. J.:

It may be conceded in this case that the negligence of the defendant is established, and yet the serious question remains whether the negligence of the grandmother, Theresa Hatch, was not a contributing cause of her own death and that of the infant in question. If it was, as was charged by the trial judge in this case, this action for the death of his intestate cannot be maintained by this plaintiff.

It appears from the evidence that at the place where she stopped to Took for an approaching-'train, viz,, from four to six feet north of the first rail of track No. 4, Mrs'. Hatch could’see a train approaching from the east on track No. 3 a distance-of about 2,400 feet; she could from that point also see a train coming from the west on track No. 4 a distance of from 1,200 to 1,400 feet. It seems, .then, that when she stopped to make that observation she was not pre^ vented from seeing by any artificial obstruction; undoubtedly if she looked carefully she would have seen both trains.- It is suggested that smoke from the train coming from the west- ’'Obstructed her View and confused her action, .but I do not discover- any satisfactory evidence in this case that any such smpke did in fact so interfere with her. The clear, weight of evidence is, that the engine from the west was much too far away when the deceased was hit to permit its smoke to have any such effect. As soop as she has taken this observation she starts "to- cross the tracks. She goes safely across track No. 4 and into the space of about seven feet between such track and the north rail of track No. 3 ; then when the engine of the train coming from the east was about ten feet from her, she attempts to step onto such north rail. She is hit by the buffer or beam of such engine, thrown ahead between the rails of the two tracks-Nos.. 3 and 4, and both she and the infant in her arms are killed. . ■

A mere statement of these facts demonstrates very clearly that the negligence of Mrs. Hatch contributed to her own and the infant’s death. We must, believe that when she looked east she saw a train coming upon track. No. 3. It could not then have been very far off, clearly not so far but that it was in plain sight, and no reason appears why she did not see it. And'it would seem that from that moment she started to cross both of such tracks ahead of both the coming trains, and was so intent in getting ahead of the one coming from the east that she never stopped to see how near it had got to the crossing. She misjudged her time, did not take time to give a, second look, and, hence, stepped in front of the engine when it. was in plain sight and almost within reach of her.

When the appeal in 'the action against this same defendant for the death of Mrs. Hatch was before this court,"- we sustained the order of the trial judge, which granted a new trial upon bis minutes, on- the ground that the verdict was against the weight of the evidence. The facts as they appear in this record are not substantially different from those that we then acted upon. "We are still of the opinion that Mrs. Hatch’s own negligence was the cause of this accident.

This judgment must be reversed on the law and the facts, and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment.and order reversed and new trial granted, with costs to appellant to abide event. '  