
    Daniel Hurley, as Administrator, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Negligence—Burden of proof.
    In an action for injuries causing death, the burden is with the plaintiff to prove that his intestate was free from, contributory negligence.
    2. Same—Questions for jury.
    Where the conclusion is permitted that the emergency, in which the in. testate was placed by the negligence of the defendant, was such that he was not responsible for failure to use the best or most accurate judgment which may now seem to have been available to extricate him from his perilous position, the question of contributory negligence on the part of the plaintiff’s intestate is one of fact upon the evidence for the determination of the jury.
    Appeal from a judgment entered on a verdict in favor_ of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.
    
      James Fraser Gluck, for app’lt; John Cuneen, for resp't.
   Bradley, J.

In the evening of November 19, 1891, the plaintiff’s intestate, in driving a corette on Seneca street, in the city of Buffalo, was killed by a train upon the defendant’s road, which crossed the street diagonally in a northeasterly and southwesterly direction. The line of the street is nearly east and west. The deceased was driving east, and had passed over the tracks of the Western New York & Pennsylvania Railroad, and stopped between them and the tracks of the defendant’s road for an engine moving westerly to pass, and after it passed he drove forward onto the track of the defendant, and his vehicle was struck by a train going northeasterly on the defendant’s road, causing his death. The inference was warranted by the evidence that no signal by bell or whistle was given of the approach of the train. The jury were permitted to find that the defendant was chargeable with negligence. The burden was with the plaintiff to prove that his intestate was free from contributory negligence. There was evidence tending to prove that he looked -both ways to see whether he could safely cross the track, before he drove upon it. The engine of the train had a-headlight and, while it does not very clearly appear that he may not have seen it if he had carefully and continuously looked, there is evidences of circumstances which may have reasonably led him to suppose that he could safely cross when he sought to do so, until he had so far proceeded as to relieve him from the imputation of negligence in entering upon the track. The street is a business one. It is crossed by the Western New York & Pennsylvania Railroad tracks westerly of and parallel with those of defendant. The gates at the crossing were, and had been for two or three days, out of repair, and not operated, and a flagman was stationed there. The evidence on the part of the plaintiff is to the effect that when the deceased had driven across the track of the Western New York & Pennsylvania Railroad the flagman gave a signal for him to stop, which he did between it and that of defendant, and that immediately after the engine going west passed the flagman gave a signal for him to proceed, and that he did so, with the unfortunate result. The signal to proceed may be deemed to have been something of an invitation to the deceased to go forward, and such assurance as it could furnish that it was safe to do so. Three passengers in the carette saw the headlight of the approaching engine just as the horses were going upon the tract, and jumped from the vehicle before the collision; two of them without and the other with some personal injury occasioned by it. The plaintiff’s intestate having charge of the team did not abandon the carette. It is .evident" that he was in a position to see the train momentarily, as did the passengers, before the collision. But at the time his situation was an emergent one. He had so far proceeded that his position was perilous, and he may not have used the best j udgment for his personal safety. He probably may, by the abandonment of his rig, have jumped from the coach, and saved himself. But the conclusion was permitted that the emergency in which he was placed by the negligence of the defendant was such that he was not responsible for failure to use the best or most accurate judgment which may now seem to have been available to extricate himself from his perilous position. Voak v. Railway Co., 75 N. Y. 320: Twomley v. Railroad Co., 69 id. 158; Dyer v. Railway Co., 71 id. 228; Roll v. Railway Co., 15 Hun. 496; 80 N. Y. 647. The questions of negligence on the part of the defendant and of contributory negligence of the plaintiff’s intestate were those of fact upon the evidence, and were fairly submitted by the learned trial court to the jury, and it is not seen that the questions arising upon the conflict of the evidence were not properly disposed of by the verdict. None of the exceptions were well taken.

The judgment and order should be affirmed.

All concur.  