
    Catharine Moore,as Administratrix, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    Negligence—Question of fact—Railroad crossing-.
    Where the negative testimony of several witnesses, who were in position to hear and whose attention was directed to the fact, directly conflicts with the positive testimony of other witnesses, upon the question as to whether a signal was given, it should be submitted to the jury.
    Appeal from an order denying a motion for a new trial, made-on the minutes of the court.
    
      J. W. Dunwell, for app’lt; John Gillette, for resp’t.
   Bradley, J.

The plaintiff’s intestate was struck by the engine of a passenger train on the defendant’s road at the crossing of Bast street, in the village, of Canandaigua, and killed, December 10, 1891. The plaintiff charges that his death was occasioned solely by the negligence of the defendant, and upon both the question of the negligence of the defendant and that of care on the part of the decedent there is conflict in the evidence introduced by the parties respectively. He was riding and driving in what is commonly known as a “one-horse democrat wagon,” and going southerly upon Bast street, and passed into the railroad track, where his wagon was struck by a train moving westerly, with the result before mentioned. The evidence on the part of the plaintiff tended to prove that no signal was given of the approach of the train ; that no whistle was sounded, and no bell rung, until just at or immediately preceding the collision. There was much evidence upon the subject. The daughter, two sons, and the son-in-law of the deceased were at the house of the latter, which was on higher ground than the railroad track, and 625 feet north of it, and 710 feet northeasterly from the crossing on East street. They testify that they were in a situation at the time to hear the signal given if one bad been given ; that they heard none on the approach of the train ; and the daughter and one the of sons testified that their attention was then called to the fact that nowhistle or bell was sounded when they saw the train approaching, as the deceased had shortly before left the house, to go home and on his way would pass over the crossing in question, and that to enable the son to observe the movement of the train and the progress of his father he climbed into a tree where he could see both. The fact that he did so was corroborated by the evidence of the others at the house. Two passengers on the train, who were in the smoking car, testify that they heard no signal bell or whistle until just at the time of the collision. They were sitting together, and one of them testified that before this, on the train, he had noticed signals by whistles given in coming into towns ; that he knew the train was coming into Canandaigua; knew where the station was; and the fact that there was no signal given attracted his attention, and that no signal was there given until a moment before the accident; it was given at the time or an instant before the air brakes were applied; that “they didn’t blow the long whistle for Canandaigua station u'ntil after the accident, or a second before the accident.” On the contrary the engineer, conductor and two trainmen testified that the whistle was sounded for some considerable distance before reaching the crossing The engineer said between 300 and 400 feet, and one of the trainmen said he thought it was 400 or 500 feet east of the crossing; and the fireman testified that he rang the bell,—commenced ringing it some 300 or 400 feet east of the crossing. Another witness, called by the defendant, testified that he was on his way from his residence on Gorham street, which crosses East street north' of the crossing in question, and was going easterly on Gorham street, and, after passing East street, and when he came along where Kimball resided, he saw the smokestack of the train and heard the whistle as it approached the crossing : that it was a long whistle; commenced to sound, as he judged, a quarter of a mile from Kimball’s place; that the whistle continued about three or four seconds, and stopped before the train reached the crossing, and when it got to the box cars, which will hereafter be more particularly referred to. Being asked, on his cross-examination : “ Was there a signal that you heard when it came by those cars Ans. I don’t remember nothing. I couldn’t see the train when it got behind those box cars. You might see the stack. Q. You couldn't tell there was a train coming except for that, Qould you? Ans. Ho, sir.” And one Mason Mills, a passenger on his way from Phelps to Canandaigua, testified that he was in the smoking car, and that, as the train approached this crossing, he heard a whistle, a long whistle ; that he could not say how far it was from the crossing; it may have been a hundred rods ; that he would not say it was that dis-stance; and that “ it blew four or five seconds somewhere along there,” Such is substantially the evidence upon the question whether a signal was or was not given of the approach of the train to the crossing upon which the intestate proceeded in front of it. Affirmative evidence of the fact that a signal was given at and for some distance on the approach of a train may apparently seem more potent than that of persons to the effect that they did not hear it, or that no such signal was given; yet when the evidence of the latter tends to prove that their attention at the time was directed or called to the fact, and the omission to give any signal was particularly observed by them, the question is one for the jury to determine. And while the persons on and running the engine have at least as good opportunity to know as any other person can have whether the signal was given in the present case, their relation to the defendant was a circumstance which the jury were also permitted to take into consideration in determining the disputed question of fact. The evidence of the employes of the defendant was that the train was running at the rate of 25 or 30 miles an hour, and the speed was estimated higher by that of one or more other witnesses. It seems that East street is within the eastern boundary of the village of Canandaigua, and that the yard of the defendant extends considerable distance east of that street, and the railroad station or depot is some distance west of it. The train was running about on its regular time on its approach of the street, being due at the station at 12.50 P. M. The day was clear. The deceased was familiar with the crossing, and, unless his view was interrupted by the defendant’s cars standing upon a track north of that on which the train was moving, he could, by looking, have seen its approach. It appears that at the crossing there were three tracks. That the northern one was a branch track. The middle one, seven feet from it, was that on which the train was coming. That the next track south is that of the Northern Central Railway, the branch track before mentioned; and from 150 feet east of the crossing five other tracks extend cast 2,900 feet from East street. Upon the most northerly one of the tracks some cars were standing at the time of the accident, and it is claimed on the part of the plaintiff that they obstructed the view of the train by the deceased as he approached the railroad. After leaving Kimball’s house, lie drove southwesterly into and along Gorham street into East street; thence southerly 543 feet in that street to the crossing, and the evidence on the part of the plaintiff tends to prove that there were cars upon the branch track extending from a point 25 feet east of the street a long distance east, and that they at the time shut off the view of the deceased of the train as he was going south to the crossing. The fact that cars were standing on that track is not questioned, but the controversy in that respect has relation to their location, and as to how continuous the line of them was. The defendant introduced evidence to the effect that the nearest one was 150 feet from the crossing; that the first one was a gondola car, 34 feet long; then five box cars, altogether occupying space of about 290 feet in length on the track; that then east therefrom there was an opening of considerable distance, to other cars; and so on, cars and openings between them, so that a person passing down East street could see the train as it passed these openings, uninterrupted by any obstruction to his view ; that the gondola was only about eight feet high, and could not prevent seeing the train ; and that the smokestack could be seen over the box cars by a person on the street, until he was within 50 or 60 feet of the track.

It is reasonable to suppose that when the plaintiff’s intestate drove upon the track he was unaware of the danger he thus encountered ; and if, by the exercise of due care, he could have been advised of the approach of the train, and avoided the collision, he was chargeable with contributory negligence, and the defendant is not liable for the consequences of it. His situation required him to look and listen, to use his faculties, in approaching the railroad track, to ascertain whether with safety he could pass over it. The plaintiff had the burden of proving that the defendant was free from negligence in that respect. Upon that subject the son of the decedent testified that, otherwise being unable to see his father, he got into the tree, as before mentioned, from where ho could see him as he passed down the street to the crossing; that his father was then 20 or 30 feet from the crossing, that he was driving the horse on a walk, and looking both ways; that he was looking up the track and down the track, and that the witness heard the whistle of the engine just as it struck him. The witness Mills, before referred to, and who was called on the part of the defense, testified that he saw from the car in which he was sitting a man approaching the East street crossing in a wagon. As represented by the record before us, he testified, and repeated it on his cross-examination, that when he first saw him, the man was about 150 rods from openings between cars, by which his view was shut off once in a while. That he kept watch of him until he got near the crossing. That he saw him approach to four or five rods from the crossing,—might have been closer. That “up to the time he came to the crossing he had his head down. Sat down with his chin on his chest. He was looking straight ahead. I didn’t see no stir of his head.” Assuming that this witness was testifying intelligently, he could not have intended to be understood that the decedent was about 150 rods from the crossing when he first saw him. The distance there from Kimball’s house from which Moore came, was, by the streets, less than 1,200 feet. There was some opportunity to criticise the testimony of this witness from the way the record represents it was given by him. Whether the requisite signal of the approach of the train to the crossing to advise a person on the street, exercising due care, and whether or not the deceased exercised such care for his protection, were, under the circumstances furnished by the evidence, questions of fact for the jury, and properly submitted to them. ' They were by it permitted to find that the death of Moore was caused by the negligence of the defendant, and without any contributory negligence on his part. And the view which the jury were authorized to take and may have taken of the evidence is such that the court cannot see that their conclusion was so against the weight of it as to justify interference upon this review with the verdict in respect either to the questions upon which the liability of the defendant was dependent or as to the amount of damages awarded by it to the plaintiff. There seems to have been no error in the rulings at the trial. The order denying the motion for a new trial should be affirmed.

All concur.  