
    Sophia Suiter, Resp’t, v New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887 )
    
    Negligence—Railroad—Contributory negligence
    The plaintiff, just at dusk, who was traveling on the street of a certain village, approached the crossing of the defendant’s tracks About the time she ai rived at the crossing there was a train passing westwardly, and also a train passing eastwardly. She, in common with numerous other • people on foot, stood on the south side of the railway crossing until the last car of the train going eastwardly uncovered the crossing. She then started to cross, together with a friend, and was struck and injured by a hand car, which was following the train, but which had no light and gave no signal of its approach There were no lights near the crossing, and the approaching-hand car could not be seen prior to the entry of the plaintiff apon the track to make the crossing Held, that the question whether the plaintiff was guilty of negligence which contributed to the injury or not was properly submitted to the jury.
    Action for alleged negligence. Verdict for the plaintiff for $1,800 at the trial at the' circuit. Motion for a nefv trial on case and exceptions heard at special term and denied. Appeal from judgment and from order.
    On the evening of the 10th of October, 1884, the plaintiff was traveling on Fulton street, in the village of Waverly, on foot, passing northerly, and approached the crossing of the defendant’s tracks. About the time she arrived at the crossing there was a train passing westwardly and also a train passing eastwardly. She, in common with numerous other people on foot, stood on the south side of the railway-crossing until the last car of the train, which was the one ■ going eastwardly, uncovered the crossing. She was in the immediate company of Mrs. Dimmick. They started to cross together. Plaintiff was a little in advance, and Mrs. Dimmick testifies:
    “Plaintiff walked a little faster as we started to cross; could not tell just what time it was; was getting quite dusk; so dark that the lights in the town were lighted * * * we stopped at the crossing to wait; it was a very long freight train; it was going middling slow * * * we waited until the train passeij, I looked up both ways; couldn’t say whether she did or not; I didn't see anything in the way, but it was quite dusk, and she started a few steps ahead of me; and after she was on the track I heard, I thought, some one halloa, but couldn’t hear what they said, and cast my eye down and saw that close to me (saw a hand-car) and sprang back; then it came between her and me; the men were standing up on this car propelling it, and as soon as that was out of the way I crossed over and found her lying there out near the switch-house; she had been dragged the width of the road; I did not see any lights on the hand-car; didn’t see any signals; there could not have been much time elapse between the passage of the caboose and the hand-car or we would have had time to get across; if was following pretty close I should think; quite close; when the last car got to us it was going quite fast; when we first saw it it. was going middling slow, but going so far. it had got going middling fast; it looked to me the hand-car was going pretty fast; it was so close it seemed that way to me; there was some persons there to cross: did not recognize any of them; there was no light on the hand-car that I saw; when the freight train was passing we stood as near as we dared to; we were standing near the east-bound track * * * I heard some one halloa, but it was after Mrs. Suiter was on the track; I was a little in the rear * * * as soon as the caboose passed by she and me started right across; after looking, I never cross there without looking both ways; she started a little ahead of me; she was nicely on the track and I was a step or two back of the track when I first saw the hand-car; think she must have been over the first rail; not over the second when I saw her, I did not see her at the time the car touched her; coiddn’t see then because the men were in the way, and I was looking the other way; I saw the car coming close to me; that was the reason I slopped * * * heard some one halloa just as I was going to step on the track myself; that is what caused me to turn my head; the fact that I heard the halloaing, and that led me to look, and when I looked I saw the hand car; Mrs. Suiter had gone on ahead of me 36 * * it was quite dark there; after the train had passed there was nothing there to interfere with my looking up and down the track, with the exception there was a good many folks around, standing along by the fence there; just as soon as the freight train passed then the rush commenced across the street both ways.”
    The plaintiff, in giving her version of the manner in which, and circumstances surroundingthe injuries received hy her, testified, among other things, viz.:
    “ It was near seven o’clock, I cannot tell exactly what time it was, but it-was dusk; I had been to see a sick son of mine across the Erie track; Mrs Dim-mick was with me; it was seven o'clock in the evening; I had been over there and it was getting dusk, and I was in a huny, and there were two trains went along on the Erie, and I think I stood there as much as fifteén or twenty minutes waiting for them, and there were folks on both sides liushing back and forwards to get across, and I went with them, with the rest, and I had got across the track, as I thought, when this car caught me; but where it caught me I could not say, but the last I knew after it caught me I felt my head dragged over the coal cinders, and it was full of cinders, and this side was cut open, and my hat was torn off my head * * * there were no lights on this car (meaning the hand-car which followed the east bound freight train); I had no warning from anybody; my hearing is good, I wish my eyesight was as good as my hearing; it was so dark they had lit the lignts around the depot there; there were-no lights where I was * * * I am near sixty-six; I could not say how fast the hand-car was running at that time; I know it caught me; I was previously well acquainted with the crossing, and I think it is constantly traveled * * * the track crosses the highway on a level, as near as I can tell, Mrs. Dimmick was with me when I started * * * I did not venture across until I saw an opening, and saw others starting to go, when the rest started to go I started; should think there was forty or fifty on that side ready to go across when I went; I didn’t look to see anyone hut the one that was with me; there was no street light at the crossing; on either side as I saw; there was one there, but none lit; there was one lit by the depot * * * the crossing was not lit; there was no light there; I started with the rest of the company; some ahead and some behind, Mrs. Dimmick was by my side when we started to cross-she walked by my side until we got most across; I did not hear anyone halloa to me to get out of the way; I heard folks halloa and yell justas always around the depot; did not hear anybody near the crossing halloa to get out of the way, the haqd car was going east I think; I did not see it at all until it caught me; didn’t see it then, for I didn’t know what it was; didn’t see it afterward; I saw the shadow of something that caught me from that one light; I was over all the tracks pretty much when that caught me; I think I had stepped off the last rail when that caught me; the last rail of the north track, as near as I can tell; had got to the last rail of the last track when this shadow came upon me.”
    Dr. Handen testified, viz.;
    “ At this crossing the tracks ran at right angles with Fulton street.” And, also, viz.: “ Thirty feet from the south rail you could not see far either way. within ten feet could see south some distance; don’t know how far you could see north.” Also, viz,: “Assuming a person was standing near a train, he could not see anything west if that train was passing until the caboose got very •near him.”
    Warford testified that he was standing on the east side of Fulton street at the time of the accident, and as soon as that train went by I slipped across, and there was something went by with a whiz just after I crossed, and I got a glimpse of something I supposed to be a hand car. I know it was in rapid motion.” “I did not see it coming; it was dusk at that time. I didn’t see it until this noise of something passing me very swift, and which seemed to be a hand car, as I turned around.”
    At the close of the plaintiff’s evidence, the defendant .asked for a non-suit; “ on the ground that no evidence of negligence on the par|i of the defendant had been shown; and, second, that the plaintiff was herself guilty of contributory negligence, which should defeat the action at this point,” and at the close of the entire evidence the defendant asked the court to direct a verdict upon the whole evidence. Befusals were had, and exceptions taken.
    
      D. C. Robinson, for app’lt; <7. B. Floyd, for resp’t.
   Hardin, P. J.

In charging the jury the trial judge, said, viz.: “The defendant was required in running its car over this road to exercise ordinary care and prudence. If it did exercise ordinary care and prudence then the plaintiff in this action cannot recover, and that ends the case. If you shall find that this defendant in operating its cars there under the circumstances used ordinary care and prudence, then the defendant in this action is entitled to a verdict at your hands. If, however, you should find that the defendant was negligent in running its car over this street "at that time in the manner in which it was done, you would then come to a second question in the case, which is whether the negligence of the defendant caused the injury of which the plaintiff complains. If you shall find that it did not cause that injury, of course that ends the case and your verdict must be for the defendant.”

Also, ‘ ‘ If you find that the defendant was negligent, and that negligence caused the injury of which the plaintiff complains, then you would come to a third question in the case, which is, was the plaintiff free from negligence which contributed to produce her injury? If you should find that the plaintiff was negligent in the slightest degree, and that that negligence contributed to produce the injury of which she now complains, the defendant would then be entitled to a verdict at your hands, so that the question of plaintiff’s negligence "is also a very material question in the case.”

Also, “Now, the plaintiff, as she approached this crossing, was bound, and it was her duty to use her eyes and ears, and to look and to listen to see if she could discover whether there was an approaching train or not, or whether there was any car passing at that time. If she-could not do that—if she did not look and listen, and her omission to do so contributed to this injury, then she could not recover in this action.”

We think the charge was quite -as favorable upon the-latter proposition as the defendant was entitled to have from the court. It will be observed that it leaves out of view a • circumstance of considerable importance upon the-testimony pertaining to the accident, to wit: “That it was dusk, and no lights' were near the crossing; that Mrs. Dimmick testifies that she looked and did not see the approaching hand-car, prior to the entry of the plaintiff upon the track to make the crossing.

If it was so dark, or if the obstructions were such, or the location of the hand-car at the instant that the plaint - iff entered the track for the purpose of crossing was such that if the plaintiff had looked she would have seen nothing, then it might have been found as a fact by the jury that her omission to look, if she did omit, at the instant of entering upon the track, ■would not have given her any information. Then her omission to look did not contribute to the injuries which she received.

The burden was upon the plaintiff to satisfy the jury that that was no contributory negligence (Hale v. Smith, 78 N. Y., 483), and “the absence of contributory negligence is a part of the plaintiff’s case. The burden of satisfying the jury upon that point rests upon him.”

We think it would be doing violence to the evidence offered upon the trial, and now in review, to say that there was no evidence bearing upon the question of whether or no the plaintiff was free from contributory negligence. ■ Upon all the facts and circumstances disclosed by the evidence we think that question properly belonged to the province of the jury.

The case is unlike Hart v. The Hudson River Bridge Co. (84 N. Y., 62), for in that case the court said: “As the evidence stood there was no proof either way, and it was by no means clear, in the absence of evidence, that the deceased was not chargeable with contributory negligence.”

We think the observations of Miller, J., in that case are applicable to the one in hand, where he says, viz.: “Oases may arise where proof of the facts, of itself, shows, that there was no contributory negligence, but where there is no proof as to what actually did take place at the time, and the proof is such as to render it uncertain in regard to that subject, it cannot be said that an absence of negligence is established within the rule referred to. In such a case no inference can legitimately be drawn in favor of the plaintiff within the rule stated in Powell v. Powell, (71 N. Y., 73).

We think under the peculiar circumstances of the case before us, the question of whether or no the plaintiff was guilty of negligence which contributed to the injury or not, was properly submitted to the jury.

Our attention is called to Spaulding v Jarvis (33 Hun, 622), which we think does not aid appellant’s contention. In that case the plaintiff " supposed he had passed so far beyond the track of the street railroad that the passing car would not reach or touch his carriage. He was mistaken,” and the injury which the plaintiff received was “due as well to the plaintiff’s fault as to the negligence of the defendant.”

We think a case was presented for submission to the jury within the rule laid down in Stack v. The N. Y. C. and H. R. R. Co. (74 N. Y., 469). In speaking of the alleged negligence of the plaintiff, Church, C. J., said, viz.: It depends upon all the circumstances, the situation and acts of the plaintiff, the character of the crossing, the situation of the road and the facility for seeing and hearing; wind and weather, the construction of the evidence and credibility of witnesses. It is difficult to conceive of a question of fact more appropriate for the consideration of a jury than this. It is a question in which men may differ * * * There is room, to say the least, for a difference of opinion, and a verdict either way would not be set aside as against evi - dence. See also Hart v. The Hudson River Bridge Co., 80 N. Y., 622; Jones v. The New York Central, 28 Hun, 366.”

We think error was committed in receiving evidence on the speed of the hand car, from the fact that it carried no light nor signal to warn its approach.

We think those circumstances were not magnified or improperly commented upon by the learned judge. We see no error in his opinion delivered at special term upon that subject, and we are entirely satisfied with the conclusion reached at the trial and at the special term.

We must, therefore, allow the verdict to stand.

Judgment and order affirmed, with costs.

Boardmah and Follett, JJ., concur.  