
    Bernard Kilbride, as Administrator, etc., of Owen Kilbride, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—one walking from behind a wagon directly upon a railroad, track — when due care on his part cannot be inferred.
    
    One who is approaching a place of peril and danger must be alert and vigilant and must display a prudence commensurate with the dangers of the place.
    Where a person who is familiar with the locality walks along the side of a high wagon, the rear end of which is backed up to within three feet of a railroad track, obstructing his view, and steps upon the track immediately before an engine and tender, by which he is struck and killed, there are no circumstances from which the jury can infer due care and caution on his part.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 21st day of October, 1896, upon the verdict of a jury, and also from an order bearing date the 22d day of October, 1896, and entered in said clerk’s office, denying' the defendant’s motion for a new trial made upon the minutes.
    The action is one based upon the alleged negligence of the defendant, which resulted in the death of the plaintiff’s intestate. The accident occurred'between three and four o’clock in the afternoon of October 22, 1892, at a point where the tracks of the defendant are intersected and crossed by Madison street, in the city of Troy. At that point the tracks of the defendant run north and south, and occupy the whole space of what would be River street were it extended north to this point. Madison street, which here • intersects it, is a street running east and west. The northwest corner of Madison street, and what for the sake of - brevity we will call River street, is occupied by the Rensselaer Hon Works; their premises' are surrounded by a board picket fence, some twelve-feet in height,, extending westwardly on Madison. street and northerly on River street. Next east of this'fence there are two narrow-gauge tracks running north for a short distance, and. then entering the premises of'the Rensselaer Iron Company. Next east of the narrow-gauge tracks is the westerly track of the defendant.
    
      At the time of the happening1 of the accident, there was. a wagon loaded with firebrick on the north side of Madison street, the '.heads of the horses attached to ¡such wagon looking west, the rear end of the wagon being within three feet of the. westerly , rail of the defendant’s west track. One or two small cars, called in the "case dump ears, were, upon these narrow-gauge • tracks, .directly •against the wagon box, and the driver of. the wagon was engaged in unloading the firebrick from the. wagon into these small cars. From" the ground .to the top of the wagon box was .a distance of about six feet. ■ The plaintiff’s intestate was- about five, feet two inches in height.
    ■ • Shortly before the happening of the accident, an engine of the ' defendant was backing down from the. north, coming in the direction of- 'Madison street; it stopped a short distance away to admit . .of the readjustment of some switches for the: passage of an engine and some freight cars, and then started up and proceeded upon its way south, and it was the tender of .this engine which struck the . plaintiff’s intestate and caused his death. Further facts will appear in the opinion. ‘ .
    
      B- A. Bcmnenter, for the appellant.
    
      John T. Norton, for the respondent,
   Herrick, J.:

"There is some conflict in the testimony as to just where, the plaintiff’s intestate was at the time he was struck by the tender of the defendant’s engine, some of the. witnesses placing him on the south

side of Madison-street, and some of them placing him just south of the wagon box, or on a line from the wagon box, which was standing on the north side of the street. '

'..• Fob the purpose of this case,, that state of facts which is most . favorable tb the plaintiff,, and which there is any evidence to sustain, ;:will be assumed. I, therefore, adopt the statement of the respondentis counsel, contained in his brief as to the happening of this accident: “ Plaintiff’s intestate came south through the yard of the

‘ Rensselaer Iron Works ’ and info Madison street through the door or gate in the fence which ran. along the north line of Madison .street, enclosing the yard of the ‘ Rensselaer Iron Works,’ walked around the heads of the horses attached to the wagon unloading brick into the ‘ dump cars/ then east on Madison street along the south side of the wagon, and, as he stepped on the westerly main, track of the defendant, he was instantly struck by the tender of one of the defendant’s locomotive engines and killed.”

As before stated, the rear end of the wagon box was within three feet of the westerly rail of the defendant’s west track. It appears that the tender of the defendant’s engine extended a distance of about two and one-half feet beyond the rails, which would leave only a space of six inches between the rear of the wagon and .the tender as it passed by. ’ ■

In actions for negligence it must be affirmatively shown that there was a lack of negligence contributing to the injury upon the part of the person injured. (Whalen v. Citizens' Gas Light Co., 151 N. Y. 70.)

This must be shown either by direct proof or by circumstances from which the jury can infer the absence of negligence upon the part of the person injured. (Chisholm v. State, 141 N. Y. 246, and cases cited.)

But, when the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, the action cannot be maintained. (Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 420.)

In this case there are only two persons who witnessed the accident, one. a witness sworn on behalf of the plaintiff, and who testified of the plaintiff’s intestate that he came over on the track and he stepped on it, and when he was raising the foot the second time the cars backed down and hit him.”

The other was a witness sworn on the part of the defendant^ who testified that he saw the plaintiff’s intestate at the moment he was struck; that he did not see him before that time, and he testifies, “ he had both hands up;' the engine was just hitting him as I looked up.” Both witnessés testify that he was facing to the east at the time he was struck.

There is not a particle of evidence in the case as to what the intestate did as he was approaching-the defendant’s tracks. It is contended on the part of the respondent that the location of the wagon and the height of its box, coupled with the shortness in stature of the intestate, and the closeness- of the- wagon box to the rails , of the defendant’s tracks, would obstruct his vision and prevent his ‘seeing the approaching engine, and render it useless for him to have looked.in.that direction,, because, if he had looked, it is contended he“could have seen nothing excepting the wagon box;. ■

" If the wagon obstructed his view north, that did not warrant, him ' in stepping Immediately from its shelter upon the defendant’s, tracks without taking any precaution to ascertain whether it was safe “tó"do' so.' -

.A railroad crossing in the streets of a city, is a-dangerous place.at best,'and the location arid character of' the wagon and dump cars 'beyond it made this crossing at this ’ time an' unusually perilous place; and one who is approaching a.place of peril and danger must be alert and vigilant and display a prudence of conduct commensurate with the dangers of the place. (Heaney v. L. I. R. R. Co., 112 N. Y. 122; Hoffmann v. Fitchburg R. R. Co., 61 Hun, 581.)

The intestate was familiar with-this crossing; he had worked at the Rensselaer Iron Works for a considerable length of time,' .and Was in the habit of crossing the .tracks of the defendant daily in going to and fro between his homeland his place of employment.

There is no direct evidence of .a lack of contributory negligence, and'no circumstances' given in evidence from which the -jury can infer the absence of negligence on his part contributing .to the aeci- . dent, and the law does- not permit thém to: guess' that he exercised that care and caution that a person should exercise when'approaching a railroad' crossing.

This'is not like the case of Fejdowski v. D. & H. C. Co. (12 App. Div. 589), recently decided by this court. In that case .the night was dark, and the deceased, as he approached tne tracks of the railroad company, stopped about twenty feet from the tracks; that stbp- ' page was some evidence that he- observed proper care and caution in approaching a dangerous crossing; coupled with that was the passage of a train, and the fact that the- engine which struck him followed the train at a distance of only some 200 feet, was going at a speed Of from twenty-five to thirty miles an hour, was unliglited, and was so noiseless and swift that it'was within five feet of one of the witnesses before he was aware of its approach. .

Here we have simply these naked facts: That the deceased, a person entirely familiar with this crossing, in broad daylight walked alongside of a high wagon which obstructed his view óf the tracks to the north, and stepped from beside the wagon upon the defendant’s tracks immediately in front of the engine which struck him.

Upon these facts there is nothing from which 'the jury could infer due care and caution on his part.

The judgment and order appealed from should, therefore, be' reversed, and a new trial ordered, costs to abide the event.

All concurred, except Putnam, J., not sitting.

Judgment and order reversed and a new trial granted, costs to abide the event.  