
    Dennis O. Leary, as Administrator, etc., of Theresa Leary, Deceased, Appellant, v. Fitchburg Railroad Company, Respondent.
    
      Negligence — injury to a pedestn'ian, going around the end of a freight train obstructing a street, by a passenger train on the adjoining track — speed of the train — failure of a witness, not listening, to hear any warning — evidence of a custom, to go around the train.
    
    A bright, intelligent girl, over twelve years of age, walking easterly along a street in the village of Hoosick Falls at about one o'clock in the afternoon of a bright day, upon reaching the tracks of a railroad which ran north and south, found a freight train standing on a siding, obstructing her passage, and proceeded to run around it. On reaching the north end of the freight train she crossed the track in front of the locomotive and passed over an intervening space of four feet to another track, and- when in the middle of that track was struck by a north-bound passenger train.
    It appeared that for seven or eight years the girl had been accustomed to cross the tracks at this point, and that the presence of the freight train obstructing the crossing was not unusual, and that the passenger train which struck her was the regular train which was due at the crossing at that time.
    It further appeared that she ran across the siding in front of the freight train over the intervening space of four feet and upon the passenger track with her head down, without looking in either direction, and that if she had looked when on the easterly rail of the siding or when in the space between the tracks she might have seen the approaching train at a distance of half a mile.
    
      Held, that the girl was guilty of contributory negligence;
    That, in the absence of evidence that timely warning of the approach of the passenger train was not given, the jury could not base a finding of negligence on the part of the railroad company upon the fact that the train was traveling at the rate of ten miles an hour.
    The testimony of a witness that he did not hear any signal given by the locomotive attached to the passenger train is of no value where he testifies that he was not listening.
    
      Evidence that persons in the locality had been in the habit, when a freight train was obstructing the street, of crossing the tracks at the end of the train, is competent.
    Appeal by the plaintiff, Dennis 0. Leary, as administrator, etc., of Theresa Leary, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 19th day of March, 1900, upon a non-suit granted by the court at the close of the plaintiff’s case after a trial before the court and a jury at the Rensselaer Trial Term.
    The action was brought to recover damages from the defendant for its alleged negligence in causing the death of the plaintiff’s daughter.
    On FTovember 24, 1898, the plaintiff’s intestate, a bright, intelligent girl, twelve years and two months of age, while on her way to school, in attempting to cross the tracks of the defendant’s road, in the village of Hoosiclc' Falls, was struck by the locomotive engine of a passenger train and received injuries from which she died on the same day. The residence of her parents was on First street, on the westerly side of defendant’s road, and the school was a quarter or a half mile distant on the easterly side of defendant’s road. Her route from her home to her school,, after reaching Elm street, was easterly along that street across Railroad avenue, which runs north and south and on which are the defendant’s tracks. She had been in attendance at this school about seven or eight years, and had also frequently crossed the road when on errands for her grandmother, who lived on Railroad avenue westerly of the defendant’s road. On the day of the accident she left her parents’ home at about five minutes before one o’clock in the afternoon for her school, which opened at oneMfteen p. m. She stopped at her grandmother’s house, and after leaving there, at about one-five p. m., came to the Elm street crossing, which she found obstructed by a freight train of the defendant standing on the siding west of the passenger track. The south end of this freight train was a considerable distance below Elm street, and the locomotive at the north end of the train was one hundred and five feet north of Elm street and about twenty-five feet north of the baggage room connected with the passenger station of the defendant, which is on the east side of the track. Being unable to cross the tracks at Elm street she turned and ran northerly along the easterly side of the freight train until she came to the front of the locomotive of that train, when she turned, crossed in front of the locomotive, looking down, running, watching her steps over the rails, and over the intervening space of four feet, then upon the passenger track, and when in the middle of that track she was struck by the locomotive of the passenger train going north in the same direction that the freight train was headed. The escaping steam from the freight locomotive was making a loud noise. The passenger train was the one due at that station at one-seven p. m. ; had been coming in there at that' time from that direction for several years, and was on time that day. Its speed was ten miles an hour. Between the track of this passenger train and the siding westerly, on which the freight .train stood, was a space of four feet, and a person standing on the siding, or just east of the east rail of the siding, could see southerly in the direction in which the passenger train was coming a distance of over half a mile. The plaintiff’s intestate in crossing the tracks was running, looking down, and did not look up or in either direction, unless, perhaps, while she was in the middle of the passenger track just as she was struck by the train. The only person who witnessed the accident describes her conduct, when in the center of the passenger track, as follows: “ She kind of glanced to the one side; didn’t raise her-; to the south side, and as she did she made kind of a step and turned her body in that motion (ind.) away from the approaching engine, and that was then the last I saw of her until after she was run over.”
    For the purpose of showing that before the accident the people living on the westerly side of the defendant’s road and who had occasion to cross at Elm street were accustomed, when they found the crossing blocked by a freight train, to go around the end of the freight train, the plaintiff’s counsel asked the following questions of witnesses which, under the objections of the defendant, were excluded by the court, and the plaintiff excepted : “ Q. Had you before this day seen freight trains blocking Elm street at this point, and if so, how frequently ? * * * Q. For some years before the
    accident were the piiblic in coming down, that is, coming east on Elm street, accustomed to going around the end of a freight train that blocked the crossing?” “Q. Where are most of the stores and shops and schools and churches ? ” “ Q. Did you ever see a freight train standing there blocking the highway ? ” “ Q. How frequently ? ” “ Q. Previous to the occasion, that is the time of the accident, any occasion had you or had you not seen the public go around the end of a freight train which blocked that highway; if so, how frequently ? ” “ Q. Previous to the day of the accident had you yourself, walking along Elm street, gone around the end of a freight train that blocked Elm street, and if so, how frequently % ”
    
      G. B. Wellington, for the appellant.
    
      T. F. Hamilton, for the respondent.
   Edwards, J.:

I am of opinion that the learned trial justice properly disposed of the defendant’s motion for a nonsuit. The evidence was insufficient to authorize the submission to the jury of the question of the defendant’s negligence or the absence of contributory negligence on the part of the plaintiff’s intestate.

Before considering the evidence of the defendant’s negligence we should determine whether any offered by the plaintiff on that question was erroneously excluded, and if so, should give to it the effect it should have had if it had been admitted. The place where the deceased attempted to cross the tracks of the defendant’s road was not a regular crossing, and the plaintiff’s counsel sought to show that people living on the westerly side of the tracks and having occasion to cross at Elm street had been accustomed, when a freight train was obstructing Elm street, to cross the tracks at the end of the train. I think such evidence was proper as bearing on the question of the degree of care which should be exercised by the defendant knowing and acquiescing in such custom. The questions in the foregoing statement of facts were evidently asked with a purpose of showing such custom. They were proper in form, and I think the witness should have been permitted to answer them, except the one ‘c For some years before the accident were the public in coming down, that is, coming east on Elm street, accustomed to going around the end of a freight train that blocked the crossing % ” which may be objectionable. We should, therefore, regard the custom sought to be shown as proven.

A ground of negligence alleged in the complaint, and of which evidence was given on the trial, was that the defendant’s freight train,, at the time of the accident, had obstructed Elm street for a longer period than five consecutive minutes, in violation of section 421 of the Penal Code. Whether the violation of this section was an act of negligence, causing in part the injury to the plaintiff’s intestate, need not be considered for the reason that the evidence is insufficient to warrant a finding that there was an obstruction for more than five minutes. Two witnesses testified as to the time the freight train wras blocking Elm street. One of them says that when she went to the front door the freight train was standing on the west track, and that she is quite sure it was standing there when the plaintiff’s daughter was run over, which, in her judgment, was five minutes or more; but, upon her cross-examination, she says that she did not see the plaintiff’s daughter that day when she attempted to cross the track; did not see her until after the accident, and did not look at her watch or clock to tell how long the train had been there. It was the merest guess; an opinion without any basis. The other witness, who is the only person who witnessed the accident, on liis direct examination says: “ It stood there blocking Elm street all- the time that I was there at theodepot; my best recollection of it is, a little over five minutes; I couldn’t tell just exactly.” On his cross-examination he says : “ It was there when the passenger train whistled; stood still over the crossing; that was the first time it stood still, when the whistle bio wed on the passenger train ; then it stood still from the time the passenger train whistled until the passenger train came in ; I don’t know whether that was five minutes, I didn’t take my watch.” This witness had testified that the whistle of the passenger train blew at the whistling post half a mile distant, and the train, when it reached him, was running at the rate of ten miles an hour, so that if the freight train stopped at the' Elm street crossing when the whistle blew, it could not have been there more than three minutes at the time of the accident. The attention of the witness evidently having been called to this fact, lie said: “ I don’t think at that rate of speed it would take that train five minutes to come from the whistling post down there, that passenger train. That t/rai/n could not have been standing there on that crossing five minutes before that train came in.”

There was a failure of proof by the plaintiff that the passenger train was not giving proper precautionary signals of its approach. There was but one witness on this question. To him the following question was put: “You may state whether the passenger engine bell was ringing at that time.” He answered, “Ho, sir, I did not hear it.” On his cross-examination he said, “ I didn’t hear any bell; I wasn’t listening ; I wasn’t anticipating anything ; I wasn’t listening for a bell.” This mere negative evidence is without any value.

The remaining fact is the speed of the train which, although the accuracy of the inexperienced witness may be doubted, we must assume to have been ten miles an hour. Our attention has been called to a class of cases holding that the running of a train at a high rate of speed through a crowded or thickly populated locality in a city or village is evidence of negligence to be submitted to a jury. But this case is not within that rule. Here the train was running at the low rate of ten miles an hour, and in the absence of evidence that timely warning of its approach was not given, the jury would not have been authorized in finding that that rate of speed, under the circumstances, was negligence.

I am also of the opinion that the complaint was property dismissed for want of evidence that the plaintiff’s intestate was free from contributory negligence. She was beyond question sui juris, and although she might not be held to the same degree of care as an adult, yet she was bound to exercise such care and caution as might be reasonably expected of a person of lier years, intelligence and experience, and the burden was upon the plaintiff to show the exercise of such care. (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 250 ; Tucker v. N. Y. C. & H. R. R. R. Co., 124 id. 308 ; Thompson v. B. R. Co., 145 id. 196.)

The evidence fails to'show the exercise of any care by the deceased for her protection, and is convincing of her negligence. She was a bright, intelligent girl over twelve years of age; had for seven or eight years been accustomed to crossing the tracks of the defendant’s road in going to and returning from school and had frequently crossed in doing errands for her grandmother. The freight train on the siding obstructing Elm street was not unusual, and the passenger train was one that had for several years been coming in there at that time. With these facts and with the situation generally she must have been familiar. She was on her return to school, which opened about one-fifteen p. m., and finding Elm street blocked she ran northerly along the westerly side of defendant’s freight train standing on the siding, then turned and running crossed the track in front of the engine of that train, with her head down, over the intervening space of four feet and upon the passenger track, in the middle of which she was struck by the locomotive of the passenger train. It was a bright, clear day, and it is undisputed that on the easterly rail of the siding she could have seen the approaching passenger train at a distance of half a mile. There is not the slightest evidence of the exercise of any degree of care. If she looked at all for the approaching train, which is quite doubtful, it was not until she was in the center of the passenger track when the train was upon her and it was too late. In her commendable desire to arrive at school in time she became unmindful of the danger which she should have apprehended and suffered the lamentable consequences of her thoughtlessness.

The judgment should be affirmed, with costs.

All concurred, Parker, P. J., and Kellogg, J., in the result.

Judgment affirmed, with costs.  