
    Hattie Krauss, as Administratrix of Joseph Krauss, Deceased, Respondent, v. The Wallkill Valley Railroad Company, Appellant.
    
      Injury received in crossing a railroad track — contributory negligence.
    
    In an action brought to recover damages for the death of a person caused by reason of standing cars, between which he was crossing a railroad track, being driven together by an approaching train, the evidence showed that the train was backing slowly, and that the deceased could see the track for a distance of from 200 to 300 feet, with but two box cars between him and the train.
    
      Held, that the evidence indicated contributory negligence on the part of the deceased.
    To justify the submission of such a case to the'jury, it is not enough that the evidence does not absolutely show contributory negligence on the part of the deceased; it must establish his freedom from contributory negligence.
    The omission of a railroad company to give statutory or other signals, or to exercise proper care, does not excuse one crossing its tracks from observing care on his own part.
    Appeal by tbe defendant, tbe Wallkill Valley Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Ulster county on tbe 21st day of June, 1892, upon a verdict rendered at tbe Ulster Circuit, and from an order denying tbe defendant’s motion for a new trial made upon tbe minutes.
    The action was brought to recover damages for tbe death of tbe plaintiff’s intestate, Joseph Krauss, which was alleged in tbe complaint to have occurred under tbe following circumstances :
    
      “ On or about tbe 22d day of July, 1891, tbe said Joseph Krauss, at that time employed as a mill-stone picker by tbe Lawrence Cement Company at Rosendale in the county of Ulster, after going with tools to be sharpened at tbe blacksmith shop of said company, as was tbe rule after day’s work, was returning along a path beaten by use towards tbe mill, likely to get bis coat, bis day’s work being finished; at a point where tbe path crossed tbe track of - defendant’s railroad there was an opening between cars of a foot and a half or two feet, and at tbe time tbe said Joseph Krauss,' deceased, was going along said path across tbe said railroad tracks and through said opening, a train of about twelve cars, propelled by an engine, without notice .to said Joseph Krauss, drove tbe cars at said opening together, fatally crushing the said Joseph Krauss, deceased, and from such injuries he died in about ten hours, without any fault or misconduct on his part, but only from the misconduct and mismanagement and negligence of defendant’s workmen and employees on the train.”
    
      Ashbel Green and F. L. Westbrook, for the appellant.
    
      William Lounsbery, for the respondent.
   Putnam, J.:

We think plaintiff failed to show the absence of contributory negligence on the part of deceased, the testimony in the case rather tending to establish his carelessness. The train was backing slowly; Krauss was walking across the track; there were but two box cars between him and the slowly moving train. He could see down the track 200 or 300 feet. Had he looked before he stepped on to the track between the two cars, it is difficult to understand how he could have failed to see, at least, the nearest end of the approaching train. All the evidence given in the case indicates negligence on the part -of the deceased.

If, however, the testimony does not absolutely show the contributory negligence of Krauss, it certainly fails to establish his freedom from negligence. Hence, we think, the case should not have been submitted to the jury. “ In the absence of any evidence exonerating the deceased from contributing by liis own negligence to the accident, no case was made for submission to the jury.” (Borden v. D., L. & W. R. R. Co., 131 N. Y. 671; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 425.) .

It is well settled that the omission of a railroad company to give statutory or other signals, or exercise proper care, does not excuse one crossing a track from observing care on his own part. (Cullen v. D. & H. C. Co., 113 N. Y. 667.)

This view of the case renders it unnecessary to discuss the other questions raised.

The judgment must be reversed, new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, new trial granted, costs to abide event.  