
    Mary Ryan, as Administratrix, etc., of Thomas Ryan, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Negligence—■ care required of a person, injured while using railroad tracks as a highway—what facts do not justify an inference that due care was exercised -by him.
    
    A person using the tracks- of a railroad corporation as a highway voluntarily places himself in a much more dangerous position than that assumed hy one who is merely crossing directly over the railroad, and consequently the former is under a much greater obligation than the latter to exercise active vigilance in guarding against danger.
    In an action brought to recover damages resulting from the death of a person (familiar with the locality) who was struck by a train while unnecessarily walking along the tracks of a railroad, at a point where he must have known
    ■ that trains were constantly passing and repassing, it appeared that the deceased’s view of the train which struck him was unobstructed until, in' order to escape one train, he passed into' an opening between two parts of a train of cars which was standing still, and that upon stepping out of the opening upon another track he was almost immediately struck by the train in question. There was no evidence as to what the deceased did after passing into the opening.
    
      Meld, that there was- no evidence from which the jury could infer the absence of contributory negligence upon the part of the deceased.
    Appeal by the defendant, The New York Central and Hudson ■ River Railroad Company, from a judgment of the Supreme Court ' in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 31st day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 19th day of December 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The action Was brought to recover the damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant.
    
      R. A. Parmenter, for the appellant.
    
      Charles P. Patterson and William J. Roche, for the respondents.
   Herrick, J.:

The burden rests upon the one seeking to recover for a personal injury, the result of aii accident, to show that the person so injured was free from any negligence contributing to such accident or injury; and, while that Obligation may be discharged by showing surrounding facts and circumstances from which the jury can infer that the person so injured did not by his acts or conduct contribute to the injury, yet there must be affirmative evidence from ■ which the jury may properly infer that the person so injured discharged his duty under the circumstances.

There is a duty resting upon the person injured, as well as upon the person or corporation inflicting the injury, and there must be, evidence that the one has performed his duty, as well as evidence that the other has omitted to perform liis. or its duty, and the jury are not to be left to guess or speculate as to either.

This duty of personal care' and caution is commensurate with the dangers and perils of the situation, and one who voluntarily places himself in a position of peril and danger must be actively vigilant .to guard himself against such danger or peril. .

The tracks of a railroad are always a situation involving peril and calling for a vigilant.-exercise- of the use of one’s senses. (Heaney v. L. I. R. R. Co., 112 N. Y. 122.)

The case before us is. hot simply that of a person seeking to cross a railway track, but of one using the tracks of -a railway as a highway. While- it was'apparently necessary that the plaintiff’s intestate should cross the defendant’s tracks for the purpose of reaching his place of employment, it does .-not appear to have been necessary for him to have done anything more than to cross such, tracks for such purpose. He appears to have been struck at Tyler street; he. came Upon the tracks- of the defendant’s road some distance above Tyler street, and was walking down the tracks towards Tyler street, and there is no evidence that he looked or listened- to see if there were, any approaching trains, and if so, how many.

At this point there were four tracks, with trains constantly passing and repassing in both directions. He was familiar with the ■ locality, had worked in the same place for a considerable period and must necessarily have known of the continual passing and repassing of trains. '

His use of the defendant’s railway as a highway, his walking along the tracks, was- a voluntary placing of himself in a much more dangerous, position than that assumed by one who is simply approaching a railroad, and who is merely seeking to cross directly over it; and if it is true that a man’s duty is commensurate with the peril and dangers of the-situation, -then it seems to md that there was a much greater obligation for active vigilance resting upon him to guard against danger than rests upon one who is simply approaching a railway crossing, and as to whom the courts have held that it is his duty to listen and look both ways to see if there is any danger approaching.

Here ' the road is straightaway for some distance; there is no evidence that there was anything to obstruct his view of the approaching train which finally struck him, until he got behind the cars at the Tyler street crossing. There were only two of these at most before the opening of the train was reached; then to escape one train he passed into the opening between the cars of the train that was standing still, and stepped from the track upon which they were resting to the fourth track and was almost immediately struck and injured. There is absolutely no evidence upon the part of the plaintiff as to what he did after passing into this opening between the cars. There is no evidence from which the jury can infer that he looked, or attempted to look or listen, for any approaching trains, and there is nothing in the surrounding circumstances from which the jury can infer that he discharged the duty ordinarily resting upon a person approaching a railroad -crossing, much less from which they can infer that he discharged the duty he owed to himself when he voluntarily placed himself in a position which he must have known to be a place of danger.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All.concurred, except Putnam, J., not sitting.

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