
    Mary York, as Administratrix, etc., of Jesse York, Deceased, Appellant, v. The New York, Ontario and Western Railway Company, Respondent.
    
      Negligence—proof required that one kitted, while driving over a railroad crossing-, ■ was free from, contributory, negligence — a judgment in an action tried as one for negligence cannot be sustained on the theory of a nuisance having been created.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate who, while driving over the defendant’s railroad at a highway • crossing, was killed by being struck by one of the defendant’s locomotives in consequence of the alleged negligence of the defendant, proof' that the intestate was. driving slowly as he approached the crossing is not, in the absence of evidence that he looked or listened' as he approached the crossing, sufficient to. sustain the burden resting upon the plaintiff of showing that the intestate was free from contributory negligence. .
    The plaintiff in such an action, tried and treated in the judge’s charge wholly and simply as one for-negligence, cannot, in.support of a verdict obtained by her, successfully maintain that there was sufficient in the complaint and in the proof to support such verdict, on the theory that the defendant had created a nuisance in the highway, thus rendering it unnecessary for her to' prove in the first instance absence of contributory negligence.
    Appeal by the plaintiff, Mary York, as administratrix, etc., of Jesse York, deceased, from an order of the Supreme Court, made at the Sullivan Trial Term and entered in the office .of the clerk of the county of Sullivan on the 6th day of June, 1904, setting aside the verdict "of a jury in favor of the plaintiff arid granting á new trial of tlie/ action.
    
      George H. Smith and William W. Smith, for the appellant.
    
      Carpenter & Rosch, for the respondent.
   Chester, J.:

The action is one to recover damages for the death of plaintiff’s husband, who it is alleged was killed by oneyof defendant’s locomotives where its railway crosses the highway at Centerville Station, Sullivan county. On the trial the plaintiff had a verdict which was set aside by the learned trial justice, on the ground that the plaintiff had failed to show the absence of contributory negligence on the part of the intestate and that there was no evidence from which the jury could properly infer such absence.

Plaintiff’s counsel urges here, as he did jn the trial court, that there was sufficient in the complaint and in the proof to support the verdict on the theory that the defendant had created a nuisance by wrongfully obstructing the highway at the place of the accident with piles of snow, upon one of which the decedent was overturned upon the defendant’s tracks while he was riding in a sleigh drawn ■ by a'single horse, and killed.

. It is -insisted that in such a case it is not incumbent on the plaintiff to prove the absence of contributory negligence on the part of the decedent in the first instance, but that the burden to show that was upon the defendant if it claimed that there was such negligence.

But the sufficient answer to this theory is that while there were allegations in the complaint that snow had been carelessly and negligently piled by the employees of the defendant in the highway at the railroad crossing, making said crossing very dangerous', unsafe and extra hazardous when dark, and being the immediate cause of the death of said Jesse York, caused by the gross negligence of the defendant,” and while there was proof in support of these allegations, the case was tried wholly and simply as one for negligence and not as one for damages for maintaining a nuisance in the highway.

The complaint contains but a single cause of action. It alleges many acts of negligence on the part of the defendant other than piling snow in the highway, and is essentially and wholly one for damages for the alleged negligent killing of the decedent. The trial justice submitted the case to the jury - as one solely for negligence. ,

In his charge- he said to the jury: “ Before this plaintiff can recover, she must establish affirmatively to your satisfaction, by a preponderance of evidence, two things: That there was no negligence upon the part Of her husband that contributed to the happening of this accident, and second: That it happened solely and entirely through the negligence of the defendant. Both these propositions must concur. Ho matter how negligent the defendant was she- cannot recover if her husband was also negligent and that negligence contributed to this unfortunate accident. I said she must establish it affirmatively. That means practically this: That the railroad company is not bound to prove anything. It is not bound to prove that it was,not negligent. She must prove that it was. The railroad company is not bound to prove that York was negligent. ■She must pro ve that he was not.” The court also stated the same principles in other language in other' places in its charge. The learned counsel for the plaintiff did not in any way except to' this charge or request the court to charge qn the theory that the action Was one for, damages for maintaining a nuisance or to charge • that ' it Was not incumbent on the plaintiff to prove the absence of contributory negligence. The charge as made, therefore, became under the implied consent of plaintiff’s counsel, by his not excepting thereto, the law of the case and he cannot now be heard to say that the jury might have decided' the case on the theory now insisted upon,by him, "for no such question was .submitted' to them. 1 ' It is also urged on behalf of the plaintiff that there was sufficient . evidence to warrant the jury in finding that the decedent was free, from contributory negligence. There was proof, that he was driving his horse slowly when he was approaching the crossing,, but there was no evidence that he looked or listened as he approached the crossing, and the court so charged. This being so, we think the» learned trial justice properly set aside the verdict in plaintiff’s favor and no reason has been shown Why we should interfere with his discretion in so doing. '"

The order should; be affirmed, with costs.

All concurred.

Order affirmed, with costs.  