
    Sarah Neary, as Administratrix, etc., of Michael Neary, Deceased, Appellant, v. The Citizens’ Railroad, Light and Power Company, Respondent.
    Second Department,
    January 26, 1906.
    Negligence — death, of pedestrian walking on trolley track—when contributory negligence for jury.
    The plaintiS’s intestate was killed, by an electric car which overtook him while walking at night on tracks laid in a country highway. At the time a freight train on an adjoining railroad was passing with much noise. No bell was rung or warning given by the electric car. Such cars ran only at intervals.of an hour.
    
      Held, that the deceased was not negligent as a matter of law and the case was for the jury. . .
    ■ Appeal by the plaintiff, Sarah Reary, as administratrix, etc., of Michael Reary, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of' the county of Dutchess on the 9th day of February, 1905, upon the dismissal of the complaint by- direction of the court at the close of the plaintiff’s case upon a trial at the Dutchess County Trial Term.
    The plaintiff’s intestate was walking along the electric car 'track on a country highway at nine o’clock on a clear night, and an electric car fully lighted, and with a headlight, came up in his rear and ran o.ver and killed him. He had been there walking while the car was coming several hundred feet, at least. The people generally of that locality walked along the track as he did. The deceased was going toward his home, about 600 feet away. The electric cars passed each way about once an hour, , At the place of the accident the tracks of a steam railroad ran alongside of the highway, about 16 feet from the trolley track, and at the time of the accident or the -moment -before - it- a freight train was passing in the opposite direction, laboring up grade and making' much noise. Ho bell was rung ór other- warning given on the trolley car.
    The jury could have,found the foregoing facts.
    
      A. H. F. Seeger, for the appellant.
    ■ Charles 'Morsehauser [Samuel -K. Phillips with him on the brief], for the respondent. - .
   Gaynor, J.:

The case was for the;jury. The deceased had the right to walk along the track, but with that right went by laW_a duty "-for him to be ordinarily vigilant with eye and ear to kno.iy when a car was coming, and to be out .of the way hefore.it got to him, so. as not to stop it, or even make it slow up, for it had the light of way. But considering that the electric cats ran only about once an hour, and the distraction of the passing steam freight train along the side of the highway about sixteen feet away,'it was too'much to say as matter of law that the deceased was negligent in mot knowing the electric car was coming up so close behind him, especially as' no hell, was rimg or warning given on it. •.-■■';

The judgment should be reversed.

Jbnks, Hooker, Rich and Miller, JJ-, condürréd.

Judgment reversed and new trial granted, costs to abide the event. ’ ‘  