
    Jennie P. Skelton, as Administratrix, etc., of Chester Skelton, Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    Third Department,
    January 5, 1916.
    Negligence — death resulting from collision at highway crossing — burden of proof of contributory negligence — charge.
    In an action to recover damages for the death of the plaintiff’s intestate, whose wagon was struck by a train while he was driving across the tracks at a rural highway crossing, the trial court instructed the jury
    
      that the burden of proof as to the contributory negligence was upon the plaintiff, to which instruction the plaintiff duly excepted. The defendant’s motion for nonsuit was denied and the jury rendered a verdict of no cause of action. Evidence examined, and Held, that under section 841b of the Code of Civil Procedure the burden of proof as to contributory negligence was upon the defendant;
    That the court properly denied the motion for a nonsuit, so that the error in the charge as to contributory negligence was not harmless, and requires a reversal of the judgment for the defendant.
    Appeal by the plaintiff, Jennie P. Skelton, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 19th day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1915, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Campbell & Woolsey [Albert W. Campbell of counsel], for the appellant.
    
      Cobb, Cobb, McAllister & Feinberg [Peter F. McAllister of counsel], for the respondent.
   Lyon, J.:

This action was brought to recover damages on account of the death of plaintiff’s intestate, which resulted from injuries received by him at a highway crossing just north of Canastota, R. Y., in the early afternoon of January 6, 1913.

The trial court, in accordance with then existing decisions, instructed the jury that the burden of proof of contributory negligence was upon the plaintiff, to which instruction the plaintiff duly excepted. The jury rendered a verdict of no cause of action. It having been subsequently held in Sackheim v. Pigueron (215 N. Y. 62) that section 841b of the Code of Civil Procedure (as added by Laws of 1913, chap. 228) applied to a death happening prior to the enactment of the section, the judgment appealed from must be reversed and a new trial granted, unless it must be held as contended by the defendant that the nonsuit asked by it should have been granted upon the ground that under the undisputed evidence the deceased was guilty of contributory negligence, and, hence, that the plaintiff was not harmed by reason of the instruction to the jury as to the burden of proof as to contributory negligence.

In determining this question we should "be governed by the two well-established rules, (a) that the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all disputed questions of fact are to be resolved in her favor, and (b) that less evidence is required from the plaintiff to establish the freedom of her intestate from negligence than would have been required from him if he had survived and been able to testify. (Sackheim v. Pigueron, supra.)

The intestate received the injuries which resulted in his death, a few days later, while passing over the defendant’s track at a rural highway crossing. He had approached the crossing from the west driving a team of horses attached to a lumber wagon. One of the horses was four years old and is referred to by the witnesses as the colt. The other was six years old, and the team was active and high lived. From the evidence which was most favorable to the plaintiff it appears that the view of deceased towards the south, from which direction the colliding train came, was at places more or less obstructed by buildings, clothes hung out to dry, and leafless trees; and that from a point about thirty-five feet westerly of the nearest rail a person could see down the track southerly about three hundred and fifty feet, the line of vision being lengthened as the person approached the track. The only eye witness of the event, called to testify, said that the deceased approached the crossing with his coat collar turned up about his ears, his hat pulled down upon his head, and his team upon a trot; that as the team neared the track the colt became restive and pranced ahead of the other horse, and that when the deceased was at a point about thirty feet, and the heads of his horses about eighteen feet from the crossing, the deceased having pulled up his horses in an effort to hold them back, clucked to the team, which then went faster and itself cleared the crossing, but the engine struck the rim of the hind wheel and deceased was thrown from his wagon and injured. There was also testimony to the effect that the train, which was a combination freight and passenger train, was a little behind time and was traveling at the rate of thirty-five miles per hour, and that prior to reaching the crossing it did not slacken its speed and did not give any signal of its approach by either whistle or bell.

The foregoing is a brief summary in a most general way of material evidence upon the part of the plaintiff bearing upon the main issues in the case. Much of it is the subject of positive contradiction upon the part of the defendant’s witnesses. The burden is upon the defendant to satisfy this court that the motion for a nonsuit should have been granted, and hence that the plaintiff was not prejudiced by the instruction as to the burden of proof. It is impracticable to attempt to review within the brief limits of an opinion the testimony contained in a record of two hundred pages. Suffice it to say that a careful examination of the evidence has convinced us that no error was committed by the trial court in denying the motion for a nonsuit. Hence this court is not warranted in disregarding the exception of plaintiff to the instruction relating to the burden of proof as to contributory negligence. That the plaintiff was entitled to have the question of the contributory negligence of plaintiff’s intestate submitted to the jury was also the opinion of the trial justice.

We think that the judgment and order appealed from should be reversed and a new trial granted.

All concurred; Kellogg, P. J., not sitting.

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