
    Patrick J. McPhillips, as Administrator of the Estate of John B. McPhillips, deceased, Respondent, against The New York, New Haven and Hartford Railroad Company, Appellant.
    (Decided March 14th, 1884.)
    At the trial of an action against a railroad company for damages for negligently causing the death of plaintiff’s intestate, he having been struck by one of defendant's trains while crossing the track, it appeared from the evidence on behalf of plaintiff that the deceased, having crossed the track, turned back to re-cross it, when the train was in plain view, distant about 400 feet, and he must have seen it had he looked; that either he caught his fóot in or near the rails or he stumbled, and fell, was struck by the engine and killed. Held, that such attempt to re-cross was negligence on his part, whether he could or could not have crossed in safety had he not been delayed by catching his foot or stumbling; and that a motion to dismiss the complaint on the ground of his contributory negligence should have been granted.
    Evidence that a guard rail at the crossing was 3£ inches from the track rail, while 2£ inches would amply accommodate the passage of defendant’s engines, does not establish negligent construction rendering defendant liable for such damages, in the absence of proof of a different condition at other crossings, and of proof as to whether the deceased • caught his foot between the guard and main rail.
    Evidence on the part of plaintiff that flagmen were kept by defendant at other crossings than the one where the accident occurred is not admissible in such an action.
    Appeal from a judgment of this court entered on the verdict of a jury and from an order denying a motion.for a new trial.
    On May 2d, 1881, about noon, the plaintiffs intestate, a bright boy twelve years old, with two companions, crossed the double tracks of the New York and Harlem Railroad used by the defendant, from the east to the west side. The point of crossing was near the end of One Hundred and Sixty-ninth Street, which is not open west of the track. The crossing was partially planked and provided with guard rails, and had been long used by wagons and pedestrians. When the three boys were west of the tracks, intestate saw his younger brothers following and on or near the east line of rails. He re-crossed to the east to drive them back. Having done so he started on a run westward to rejoin his companions. The defendant’s train was then in plain sight, about four hundred feet away, running twenty-five miles an hour. Evidence was given tending to show that'intestate’s foot was caught in or near the west rail of the east track, but how does not appear. He could not free his foot, and was killed by the train. The plaintiff having shown the absence of a flagman, was allowed under exception to show the presence of a flagman at Morrisania and Tremont crossings.
    At the close of plaintiff’s proof, and of the evidence, motions were made to dismiss the complaint and denied, the defendant excepting. There was no evidence of any negligence in the management of the train. The jury rendered a verdict for the plaintiff, apd specially found the injury caused by improper or defective construction or condition of the railroad tracks and the crossing. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying the motion for a new- trial defendant appealed.
    
      Martin J. Keogh, for appellant.
    
      D. M. Porter, for respondent.
   Beach, J.

[After stating the facts as above.]—=For at least two reasons, I am of opinion the motion to dismiss the complaint should have been granted. It appears from plaintiff's case that the train was in plain view, and distant about four hundred feet, when the deceased turned to recross the track. He was then nearly if not quite across the east line of rails, and a step at most would have placed him in safety. Instead of taking it, he turns and runs quickly back, directly in front of an advancing train he must have seen. This was negligence. Whether or not he could have crossed in safety had he not been delayed by catching his foot or stumbling, cannot affect this conclusion. His negligent act was the attempt to cross, with an advancing train but a short distance away, and in plain sight. From the evidence, he must have seen it, but if not, he failed in his duty to look ( Wendell v. New York Central &c. R. R. Co., 91 N. Y. 420). In that case the court say: “ Under the circumstances we think he was negligent either in going upon the track without looking to see whether a train was coming or not, or if he did look and see it, in doing so while it was in such dangerous proximity. The exercise of active vigilance under such circumstances was a duty which the law imposes upon every person who attempts to cross a railroad track. He should not be permitted to make close calculations to determine whether he can safely pass in front of an approaching body, and when the experiment has failed, charge the consequences of his mistake upon the owner of the colliding vehicle or property.”

The fact of contributory negligence in this class of cases must be decided upon the evidence relating to the time when the action of the party charged therewith is first taken and not upon what may happen after the attempt is initiated. It clearly appears, the intestate started to cross the track with the advancing train in plain view. Plaintiff’s witness Aiken sajrs that when he turned to cross over, the train was at the third or fourth telegraph pole, at the most less than four hundred feet distant. The changing statements of this witness make clear comprehension of his testimony extremely difficult. On his cross-examination he says, the train was at about the fourth telegraph pole when intestate started to cross from west to east; again says he don’t remember where the train then was, and directly after, that the train was then coming from Morrisania station and believes intestate looked down towards it before he crossed. But when he turned to cross from east to west, the witness repeats the fact of the cars being in view. Another of plaintiff’s witnesses, McPhilips, a younger brother of deceased, and who remained east of the railway, thus testifies: “Just as soon as I heard the whistle blow I ran over and got on the fence, to see the train pass, and my brother Johnny pushed my other two brothers off the track, and went to run back and he caught his foot in the track and he tried to get his foot up and he couldn't do it;” and again: “ After the train whistled John stood there and pushed away the boys and the train was coming up all the time. I saw the train distinctly. He then turned around to run back.” This witness, says the train was in sight when his brother started from west to east. It should be added that trains are in full view from the crossing at Morrisania station eleven hundred and seventy-five feet away. This is substantially the evidence of the only witnesses of the accident sworn on plaintiff’s behalf. The conclusion is irresistible of the intestate having started to re-cross from east to west in front of an advancing train, about three hundred and eighty-five feet-away. No sane minds can differ upon the entire absence of proof either direct or circumstantially inferable showing in any degree the absence of negligence at the inception of the intestate’s attempt to cross. Whether or not he afterwards caught his foot between rails unskillfully laid, or stumbled, and fell, makes no difference.

The plaintiff claims the negligent construction, because a guard rail at crossing was three and one quarter inches from the track rail instead of two and one quarter inches. And this is based upon a theory advanced by two expert witnesses, that the lesser distance would amply accommodate the passage of defendant’s engines. This contention I imagine is founded upon the case of Payne v. The Troy Boston R. R. Co. (83 Ni Y. 572). Its weakness here consists in the absence of any proof that three and one quarter Inches denotes negligent construction, from a different condition at other crossings on defendant’s railway or on other railways. The fact of engine wheels requiring but two and -one quarter inches of space is not the test of negligent arrangement. The question is whether or not the rail was laid with reasonable care for the passage of the public over the crossing. Upon this point the plaintiff’s case is barren of proof. It does appear that intestate caught his foot in the rail or track, but whether between the guard and main rail, or in some other way is very doubtful. Argumentatively it is difficult to understand how the foot of a boy twelve years old could be caught in.an opening of three and one quarter or one half inches, when crossing at right angles.

For these reasons, without discussing the questions of the crossing being a highway, or the defendant’s legal position from the roadway being the property of another corporation, I am of opinion the learned judge at trial should have granted the motion to dismiss the complaint.

There is also one exception well taken. The plaintiff’s counsel asked a witness if a flagman was kept at this crossing, and then if one was kept above. To the latter question objection was made, overruled and exception taken. The witness answered: “They kept one above and one below. They kept one at Tremont crossing and at Morrisania crossing but here they have none at 169th Street.” This subject was wholly irrelevant and the fact proven incompetent (Beiseigel v. New York Central R. R. Co., 40 N. Y. 9). It would have influenced the jury upon the point of defend-' ant’s negligence, and possibly the damages awarded. It is true no negligence in defendant’s management of the train was shown, and the jury found the injury was caused by improper and defective construction. But the court should be correct in its ruling in these cases, upon the admission of evidence, which must affect the minds of a jury, although a special finding may render it apparently harmless. The effect produced may bring injustice by an increased verdict.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.

Larremore and J. F. Dart, JJ. concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  