
    Catharine P. Daniels, Adm’rx, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.
    
      (Court of Appeals,
    
    
      Filed January 27, 1891.)
    
    1. Negligence—Railboad—Lighting on headlight on engine. •
    Upon the trial of an action against defendant for killing plaintiff’s intestate at a street crossing, at 5:30 p. m., on the 3d day of November, the evidence showed that the engine and cars of the up train were perfectly visible where deceased was, and others standing much further away but on the same line of vision saw the engine and cars distinctly, and the absence of a light on the engine was not shown to have in any way contributed to the accident. The court confined the jury, as to defendant’s negligence, to the one question of its absence. Held, error ; that the defendant was entitled upon the undisputed evidence to an instruction that the question of the headlight was not a material element in the case.
    5. Same—Contributory negligence.
    Plaintiff’s intestate was familiar with the crossing, knew that there were two tracks upon which trains passed in opposite directions, and in spite of the passage of the down train obstructing his vision in the direction from which the other came, proceeded to cross immediately after the passing of the down train without looking up the road. Held, that he was guilty of contributory negligence, or at least that the accident was not attributable to any negligence on the part of the railroad,
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      Alfred B. Boardman, for app’lt; Sidney F. Rawson, for resp’t.
   Per Curiam.

We think the plaintiff failed to maintain her action both in respect of the negligence of the defendant and the freedom of the intestate from contributory negligence. Ho negligence can be imputed to the defendant by reason of the speed of the train, nor from its omission to maintain gates at the crossing, nor from the fact that there were not two flagmen instead of one, .nor by reason of any negligence of the flagman in failing to warn the deceased of the impending danger. It was not shown that the train was running- at excessive speed.

There was no duty resting on the defendant to have gates at the Maple avenue crossing in the village. It had been requested by the village authorities to erect them, but this imposed no duty until an order of the supreme court had been obtained upon their application requiring gates to be maintained. Upon such application it is discretionary with the court to “ order that a flagman be stationed at such point, or that gates shall be erected.” Chap. 439, Laws 1884, § 3. The defendant did keep a flagman at the crossing and when he observed the deceased approaching the track from the south he shouted to him that another train was approaching on the north track, but unfortunately the deceased was deaf and probably did not hear the warning. The flagman apparently did his whole duty.

The only omission which can be charged to the defendant in the management of the train was the failure to have the head light on the engine of the west bound train, which struck the plaintiff’s intestate, lighted, or rather in having the light turned so low as practically to make the condition the same as if unlighted.

The accident occurred November 3, 1888, at about thirty-eight minutes after five o’clock in the afternoon. The jury would have been authorized to find that the omission of the defendant to have .a headlight fully lighted at this time was the omission of due and reasonable care. The time was between “ dark and light,” as one witness says, and “ it was pretty dark ” is the language of another witness. The headlight on the down-bound train, which passed the crossing on the south track a few seconds before the up-bound train which struck the deceased, was lighted, and this was evidence that the time had arrived for lighting the headlight.

But the evidence discloses no relation between the omission to light the headlight and the happening of the accident. The evidence affirmatively shows that the engine and cars of the up train were perfectly visible to one on or at the side of the track where the deceased was, and several witnesses who stood much further away, but on the same line of vision, saw the engine and cars with perfect distinctness and also the reflection of the light from the car windows.

Upon the question of the ability of persons standing at- the Maple street crossing to see the approaching engine without difficulty, except as the view of the track was obstructed- by the train which passed the crossing in the opposite direction, there is no conflict whatever. It was not shown by, nor can any inference be drawn from, the evidence that absence of a light on the engine in any way way contributed to the accident.'

The court, in its charge, substantially confined the jury in passing upon the question of the defendant’s negligence to the one question whether the absence of the headlight was the cause of the accident. We think the court erred in submitting this question to the jury, and that the defendant was entitled upon the undisputed evidence to an instruction that the .question of the headlight was not a material element in the case.

We are also of opinion that the plaintiff failed to maintain the burden put upon her to show that there was no contributory negligence on the part of the intestate. The circumstances seem to point, not to an absence of negligence on his part, but rather to its existence. 'He was familiar with the crossing. He knew that there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction from which the other train came until it had passed the crossing and proceeded some distance beyond. The deceased apparently must have proceeded to cross the track immediately after the down train passed the crossing without looking up the road, because if he had looked after crossing the south track before stepping on the north track it is upon the evidence indisputable that he could have seen the approaching train.

It is impossible to escape the conclusion on the evidence that the accident happened in consequence of his thoughtlessness or at least that it was not attributable to any negligence on the part of tlio dofcndtint

The cases of Cordell v. R. R. Co., 75 N. Y., 330; Woodard v. R. R. Co., 106 id., 369; 11 N. Y. State Rep., 169; and Young v. R. R. Co., 107 N. Y., 500; 12 N. Y. State Rep., 285, cover all the questions in this and seem to require a reversal of the judgment Judgment reversed, new trial granted, costs to abide event All concur. 
      
       Reversing 23 N. Y. State Rep., 87.
     