
    (88 Hun, 196.)
    CROSBY v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    1. Railroad-Crossing—Contributory Negligence.
    Decedent was killed at a crossing by a train, going .30. miles an hour, which passed ahead of time, while a train which usually passed first stood near by. No flagman was in attendance at the time, though deceased' knew that flags had previously been used there. Just before the accident, deceased had stopped his team 66 feet from the track while a switch engine passed. Buildings along the side of the track obstructed the view of the train, which was approaching on a curve. There was evidence that the noise and smoke from the switch engine interfered with hearing and seeing the train, and that it was a dark night. One witness, who stood near the track, testified that he saw the train when it was 75 feet away, just as decedent’s horse had stepped on the track; that he could only see the outlines of the train, and could just see the headlight, and did not hear the ringing of the bell. Held, that the question of contributory negligence was for the jury.
    2. Same—Negligence—Excessive Speed.
    It is negligence to run a train 25 or 30 miles an hour at a crossing within a city which by ordinance forbids a greater speed than 7% miles an hour.
    Appeal from circuit court, Onondaga county.
    Action by Kittie Crosby, as administratrix, against the Eew York Central & Hudson Biver Railroad Company, for the alleged negligence of defendant in causing the death of plaintiff’s intestate. From a judgment dismissing the complaint entered on an order granting a nonsuit, plaintiff appeals.
    Reversed.
    
      Argued before HARDIN", P. J., and MARTIN and MERWIN, JJ.
    Ceylon H. Lewis, for appellant
    Frank Hiscock, for respondent.
   HARDIN, P. J.

Plaintiff’s intestate was killed by an engine of the defendant passing easterly on its track while crossing Geddes street at about 5:40 p. m. of the 11th day of November, 1892. He had been drawing materials to the canal, and was passing from the canal bridge southerly along Geddes street. In his vicinity were five men on foot, who stopped on the west side of the street to avoid the passing and repassing of a switch engine, and to discover that the street was free from moving trains. The deceased stopped bis horse, but at just exactly what distance from the tracks does not appear, though at the trial it was assumed to be about 66 feet. The train that caused the injury was approaching from the west on a curve, and with the headlight lighted, at a speed, shown by some of the evidence, of 30 miles an hour, on a down grade. When plaintiff started to cross, he was required to pass directly in front of the headlight of the switching engine, a few feet from it,—so near as to be affected by the glare of its light. He passed over the switch track. There was a Solvay train near to him, which usually crossed before No. 30,—the train which caused the injury,—but on this occasion, at a speed of 30 miles an hour (as the jury might have found), came to the crossing ahead of its schedule time. There had been flags used at the crossing, to the knowledge of the deceased, but no flagmen were in attendance in discharge of such duty on this occasion. The men who usually performed such services were attending to1 other duties. The five men who were on the sidewalk awaiting an opportunity to pass apparently did not discover train No. 30 until it was within 75 feet of the crossing, although they stood within 5 feet of the track on which the train was approaching. They narrowly escaped being injured. They point out the difficulties of seeing the approaching train. O’Neil, a witness called in behalf of the plaintiff, in describing the occurrences just preceding the accident, states that Horan was near to him, a little in front, and that he looked up the track and saw the passenger train coming, and it was then about 75 feet west of the witness, and at that time there was no flagman there; and that as he saw the train he looked down the track to see if the track was clear, and he saw a horse and wagon on the track, and a man in the wagon. “It was about in the center of the track. The forward wheel was in the center of the track that the train was on,—the south track. The forward Avheel was in about the center of that track at the time I looked to see.” And he says when he first saw the train it was about 75 feet to the west, and then he saw the wagon get hit with the train; and that it only took about two seconds to accomplish all the things which he thus stated. He says that the deceased “had the whip or lines in his hand when I saw him. He was looking—facing—towards the train. He was turned’in his seat, * " * and he was crouched over in this manner. * i:' * The front wheels of his truck, about that time, were about in the center of the track. Then the train struck his wagon. The train struck the hind wheels. At that instant I was probably fifteen feet from the south track.” There was some evidence tending to show that it was “a very dark night”; and one witness says that he could not see the outlines of the train; that he could just see the headlight, and did not hear the ringing of the bell. The switch engine had been passing up and down, and it had in use a blower which caused it to make considerable noise, interfering with the discovery of other sounds; and there is some evidence that the wind was in the east, which would carry the escaping smoke and steam in the direction of the approaching train,—to the westward,—and distribute it along the tracks to the west of the deceased; and there were several buildings on the west side of G-eddes street which would obstruct the view of a person passing over the canal bridge to the crossings. The witness Horan testified that he was at the crossing, and looked to the west and saw the train near the switch shanty, a little west of it, and that he called out to look out for the train, and, as he looked, he saw Crosby. The front wheels of his truck were just going over the north rail of No. 1 track. The witness adds: " “He turned around and looked up like that, and got up like that,' * * * and was going to hit the horse. That is the last I saw of him,— looking towards No. 30.” And he adds: “He was looking up like that, * * * he had the whip up like that, * * * and that is the last I saw of him.” It appears that the trial judge put the nonsuit on the ground that the plaintiff was not free from contributory negligence. We think, under the evidence disclosed in the appeal book, that the question of whether the deceased was guilty of contributory negligence was one of fact, which should have been submitted to the jury. Since the trial at the circuit we have decided Pitts v. Railroad Co., 79 Hun, 546, 29 N. Y. Supp. 871, and in that case it was held by this court that “the absence of contributory negligence may be shown from circumstances.” It was also said in that case that, “if the facts and surrounding circumstances shown are such as to reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, the question of contributory negligence is to be determined by the jury, although there were no eyewitnesses to the accident.” The opinion delivered in that case sufficiently refers to the authorities which are relied upon to support the propositions of law laid down in that case. We think the evidence in this case was such that the trial judge, in accordance with the views expressed in the case to which we have just referred, should have submitted the question whether the deceased was free of contributory negligence to the jury. In Miller v. Railroad Co., 82 Hun, 165, 31 N. Y. Supp. 317, affirmed by the court of appeals in April, 1895 (41 N. E. 90), we referred to and followed the doctrine of Pitts v. Railroad Co., supra. See, also, Chisholm v. State, 141 N. Y. 246, 36 N. E. 184.

2. It appeared by the evidence that one of the ordinances of the city of Sfiabuse in force at the time of the trial provided, viz.: “No railroad company whose cars are propelled by steam shall propel md cars within the city limits at a greater rate of speed than one mile in eight minutes.” It was assumed by the trial judge that the evidence would warrant the jury in finding that train No. 30 “was approaching the crossing from the west at the rate of twenty-five miles per hour.” We are of the opinion that the evidence offered at the trial would have warranted the jury in finding the defendant guilty of negligence which caused the death of the plaintiff’s intestate. We therefore order a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.  