
    Mina A. Parsons, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1895.)
    
    1. Negligence—Burden.
    In an action for death? of intestate through negligence, it is not to he presumed that the decedent was free from negligence, but the burden is upon the administrator to prove it, either by direct or circumstantial evidence.
    2. Same.
    The evidence, in this case, was held to render it at least probable that the injury was the result of the decedent’s own negligence.
    Appeal from a judgment in favor of defendant, entered on an order granting a nonsuit.
    
      Benedict & Thomson, for app’lt; Hiscock, Doheny & Hiscock, for resp’t.
   Martin, J.

This action was brought to recover damages sustained by the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. On the evening of November 12, 1892, the decedent was killed by one of the defendant’s trains in its yard near the station in Syracuse, N. Y. He had been a passenger upon another train. When the injury occurred, he had alighted at the station, and started for his home, beyond West street, which is the westerly boundary of the defendant’s yard or station grounds. No witness was called who saw the accident. The circumstances, however, indicate that when struck by the train, the decedent was passing over one of the tracks in the defendant’s yard, for the purpose of reaching West street through an open gate which closes over two of the defendant’s tracks. Between the place where the plaintiff alighted and West street there were two passage ways, constructed for the accommodation of passengers leaving the station in that direction, which led directly to that street without crossing any of the defendant’s tracks, either one of which might have been taken by the decedent without the slightest danger of injury from a passing or approaching train. The only purpose that could have moved or have been accomplished by him in crossing the track was to save a few feet in distance. Ho necessity whatever was shown for his taking that course. There was no evidence that the defendant in any way invited or approved of the use of any pathway across its tracks as a way of exit for passengers leaving its station, although there was some proof which tended to show that persons passing on to West street, instead of using the pathway constructed and designed for that purpose, would sometimes pass across the defendant’s tracks near the street, to save a few feet in distance. It was also shown that the defendant’s employes tried to prevent people from thus crossing the track. The train by which the decedent was injured came to a full stop just west of West street, and then ran into the yard upon track Ho. 2, which lies immediately south of the defendant’s passenger station. It was running at the rate of only three or four miles an hour. The headlight upon the engine was lighted, and the bell was ringing. The train upon which the decedent arrived came into the yard upon track Ho. 3 which lies immediately north of the station. At the time of the accident he was familiar with the station, and the passageways leading to West street, and the entire situation of the defendant’s roads and tracks at that place. There was no evidence that the engineer or any of the persons employed upon the defendant’s engine or train were not competent men, vigilant and watchful in the performance of their duties, or that they did not stop the train as soon as possible after discovering that some one had been struck by the engine, or that the train or engine was improperly managed or in any way out of repair. At the conclusion of the evidence, upon the motion of the defendant, the plaintiff was nonsuited. The appellant contends that that was error, and that he should have been permitted to go to the jury, both upon the question of the defendant’s negligence and the question of the freedom of the plaintiff’s intestate from contributory negligence. After a careful and thorough examination of all the evidence in the case, and of the circumstances attending the decedent’s death, we are unable to find any sufficient ground upon which the court could have submitted the question of the defendant’s negligence to the' jury. That the defendant furnished ample facilities for the plaintiff to pass in safety from the station to West street is undenied, and hence there was no omission to discharge that duty towards the plaintiff’s intestate. But the appellant further contends that the fact that the defendant had allowed passengers to cross its tracks in going on to West street amounted to a license. If this were tobe assumed,—which it is not,—it would still be difficult to discover any duty that was imposed upon the defendant which it omitted .to perform. If there was such a license, there was imposed upon the defendant no other duty or greater care as to persons crossing its tracks in pursuance thereof than it would owe them if they were passing over its tracks upon the adjoining street That the defendant gave proper notice of the approach of the train by the ringing of the bell, that there was a headlight upon the engine, that it was running at a slow rate of speed, that the engine and train were in proper order and repair and properly managed, all show that there was no omission ot duty upon the part of the defendant that would render it liable, even if such a license had existed. Under these circumstances, we find no error in the court’s refusal to submit the question of the defendant’s negligence to the jury

Again, when we consider the question of the contributory negligence of the plaintiff’s intestate, we find an additional ground upon which to justify the court in granting the defendant’s motion for a nonsuit. The plaintiff was bound to prove that the injury to the decedent was not caused by his carelessness, and that )t was caused by the fault of the decedent. It is not to be presumed that the decedent was free from negligence, but the burden was upon the plaintiff to prove it, either by direct or circumstantial evidence. It was said by Andrews, C. J, in Weston v City of Troy, 139 N. Y. 281, 282 ; 54 St. Rep. 493 ;

“It is a fundamental principle in the law of this state that in an action for a personal injury, based on negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by the plaintiff, either by direct proof or by circumstances; and that no presumption arises, from the mere happening of an injury and proof of negligence on the part of the defendant, that the plaintiff was free from blame.”

This case was followed in Babcock v. Fitchburg Railroad Co., 140 N. Y. 308, 311; 55 St. Rep. 640, where Earl, J., said;

“ The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett [the plaintiff’s intestate, j and that it was caused solely by the fault of 'the defendant. It cannot be presumed that he was free from carelessness, and the burden was upon the plaintiff in some way to prove it Verdicts must stand upon evidence, and not upon mere conjecture, however plausible, and, if the situation be such that the plaintiff cannot furnish the requisite evidence, the misfortune is his.”

An examination of the evidence in this case renders it apparent that the plaintiff has not successfully borne the burden of proving, either by circumstances or direct evidence, that the decedent was free from any negligence which contributed to the injury resulting in his death. On the contrary, the evidence renders it at least probable that the injury was the result of the decedent's own negligence. Thus we are led to the conclusion that the court properly granted the defendant's motion for a nonsuit, and that the judgment herein should be affirmed.

Judgment and order affirmed, with costs.

All concur.  