
    Jennie A. Griffith, as Administratrix, etc., of Robert Yates, Deceased, Appellant, v. Long Island Railroad Company and Brooklyn Union Elevated Railroad Company, Respondents.
    Second Department,
    December 28, 1911.
    Negligence — evidence—burden to show freedom from contributory negligence — affirmative and negative evidence relative to sounding of whistle — contributory negligence of person killed by train at a railroad station.
    In an action to recover for death caused by negligence the plaintiff must show affirmatively that her intestate was free- from contributory negligence, and she is not entitled to have the case sent to the jury unless the inference that the intestate exercised reasonable care is the only one that can be reasonably drawn from the facts.
    
      There is no presumption in such a case of prudence or regard for safety and where the evidence points as much to contributory negligence as to freedom therefrom the complaint should be dismissed.
    Evidence of several witnesses, who were giving no attention to the movement of trains, to the effect that they did not hear a whistle blown by an approaching train is insufficient to raise a question of fact on that subject as against the affirmative evidence of two other witnesses to the effect that they did hear the whistle blown.
    Evidence in an action brought to recover damages resulting from the death of the., plaintiff’s intestate, who was struck and killed by one of the defendant’s trains opposite a station platform examined, and held, to establish that the intestate had ample warning of the approach of the train,, and that he neither looked nor listened, or if he did that he should have seen and heard the train.
    Appeal by the. plaintiff, Jennie A. Griffith, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in- the office of the clerk of the county of Queens on the 29th day of November, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County Trial Term.
    
      Franklin Taylor, for the appellant.
    
      William C. Beecher [Joseph F. Keany with him on the brief], for the respondent Long Island Railroad Company.
    
      D. A. Marsh [George D. Yeomans with him on the brief]for the respondent Brooklyn Union Elevated Railroad Company.
   Rich, J.:

The plaintiff’s intestate was killed by an- electric express train at the Broad Channel station on the Rockaway trestle on the night of July 19, 1908. At the close of .the evidence the complaint was dismissed as to both defendants, upon the ground that the -plaintiff had failed to establish decedent’s freedom from contributory negligence, the court further stating that as to the defendant Brooklyn' Union Elevated Railroad Company the proof was insufficient to sustain a finding that the tram causing the death of the plaintiff’s intestate was under its man agement and control. From the judgment accordingly entered this appeal is taken.

To establish a cause of action it Was incumbent upon the plaintiff tó prove affirmatively freedom from contributory negligence of her intestate, and she was not entitled to have the case sent to the jury unless the evidence warranted the fair inference that the decedent had exercised reasonable care. (Wiwirowski v. L. S. & M. S. R. Co., 124 N. Y. 420; Ruppert v. Brooklyn Heights R. R. Co., 154 id. 90; Wieland v. Delaware & Hudson Canal Co., 167 id. 19; Pinder v. Brooklyn Heights R. R. Co., 173 id. 519.) And it is further held that, not only must the evidence be such as to warrant gnd sustain such fair inference, but it must appear that the inference sought is the only one that can be reasonably drawn from the facts. (Ruppert v. Brooklyn Heights R. R. Co., supra; O’Reilly v. Brooklyn Heights R. R. Co., 82 App. Div. 492; Huff v. American Fire Engine Co., 88 id. 324.) There is no presumption of prudence or regard for safety (Wiwirowski v. L. S. & M. S. R. Co., supra; Axelrod v. New York City Railway Co., 109 App. Div. 87; Wheeler v. Sundstrom & Stratton Co., 143 id. 499; Cordell v. N. Y. Central & Hudson R. R. R. Co., 75 N. Y. 330), and where the evidence points as much in the direction of negligence as freedom therefrom the complaint should be dismissed. (Pinder v. Brooklyn Heights R. R. Co., supra.) There is no direct evidence in the case at bar of the exercise of any cage or prudence by the deceased or that he took any precautions for his own safety. The evidence upon this subject is that he was forty-six years of age, and, so far as appears, in the full possession of his faculties. . At Broad Channel station, where he met his death, there- are two tracks divided by a picket fence about 5 feet high, one used for east and the- other for west-bound traffic, eaqh having' a cement platform station. There is an opening in the fence opposite, which on each side of the track is planked between the rails, through which people could pass from the one station platform to the other". On the evening of the accident the deceased, with several friends, went to the eastrbound platform for the purpose of taking a train to Bockaway beach. After standing on the platform a few minutes, the deceased said to one of his companions, Altreuter: I think I will go home myself.” At that time he was standing on the east-bound platform, about 100 feet east of the opening in the fence, towards which he immediately started, walking on the platform.' To take a train for his home in Brooklyn it was necessary for him to cross the track for the east-bound trains, pass through said opening and cross the track for' the- west-bound trains to the opposite platform, When 'opposite the opening he stepped from the platform to the track, and as he was passing over the second rail he was struck by an -east-bound train and killed. From the time he left his companions he was walking directly towards the approaching train, which could bé seen from the point Where he left the platform, and from where bie was struck, for a distance of at least 475 feet. The distance from- the edge of the platform to the first rail of the track is 27 or 28 inches; the. s .distance between the rails 4 feet 8% inches.. J The deceased had . hot, therefore, proceeded more- than 7 or 8 feet -from the edge of the platform, when he was struck by the train-. - There is no proof of the rate of speed of the train. It appears from the ¡evidence that the train had no headlight, and its first car was not lighted owing to some trouble with the 'mechanism controlling the lights, and' this, fact is presented'-as the reason for - the deceased not seeing and avoiding the tram., This conten-, tión entirely overlooks the fact that the east-bound station platform extends west nearly to the toolhouse, and the train struck the deceased 475 feet east of the toolhouse; that there ¡ were lighted electric lights along the platform on both sides of the track, lighting it, as one of- the plaintiff’s witnesses, testified, so that the train could .be plainly seen as it came around the curve opposite the toolhouse. The conductor of the train testified that the whistle was blown 4Q0 feet from the station; a whistle was heard by- one of plaintiff’s witnesses from • the direction in which the train approached, and on looking in that direction he saw the approaching train. There is, no evidence to the contrary except that several -witnesses, who were giving no attention to the movement of trains, testify that they did. not hear a whistle.' This testimony was insufficient to carry the case to the jury on that question, (Foley v. N. Y. Central & H. R. R. R, Co., 197 N. Y. 430.) In addition,, the noise.of the train was. heard by plaintiff’s witnesses- who. were standing on both the east and west-bound platforms. " . - - .

I think it appears that the deceased had ample-warning of .the approach of the train;' that he either did not look or,listen at all, ctr, if he did, he ought to have seen and heard. When, as in the case at bar, the facts establish want of due care and precaution, and the existence of contributory negligence is plain, no inference or presumption of the exercise of due care is warranted. (Baxter v. Auburn & Syracuse El. R. R. Co., 190 N. Y. 439.)

The judgment must be affirmed, with costs.

Present—Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ.

Judgment unanimously affirmed, with costs.  