
    Henry H. Skinner et al., Adm’rs, Resp’ts, v. The Prospect Park & Coney Island Railroad Co., App’lt. (Two cases.)
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Negligence — Contributory.
    Plaintiffs’ intestates were killed by an engine running at the rate of forty-five or fifty miles an hour, without signals. The view was obstructed until the wagon passed the sidewalk and the horse's head was almost on the track. Several witnesses testified that although they listened they could not hear its approach. Held, sufficient to justify a finding that the deceased were free from contributory negligence.
    Appeals from judgments in two cases in favor of the plaintiffs, entered upon verdict.
    Actions brought by plaintiffs to recover for the deaths of their intestates by being struck by a wild cat engine while attempting to cross defendant’s track.
    
      Morris & Whitehouse, for app’lt; Fullerton & Rushmore (Chas. J. Patterson, of counsel), for resp’ts.
   Pratt, J.

The testimony authorized the jury to believe that a casual or “ wild cat” train of defendant was driven through a frequented street and over a crossing at a rate of forty-five or fifty miles an hour, without ringing a bell or blowing a whistle.

The verdict having been in favor of plaintiffs we must treat those facts as established, and they justified a finding that defendant was negligent.

The important question is whether the two juries were justified in finding that the deceased were free from contributory negligence. Ordinarily where a person is, in broad day light, killed upon a railroad crossing, it is in consequence of negligence upon the part of himself or some one who controls his course. In the present case that inference is sought to be overthrown by showing a state of circumstances that otherwise explain the accident. Several witnesses agree that the customary signals, whistle and bell, were not given. Their absence does something to explain the accident without negligence on the part of the deceased. Hearing a moving train depends so much upon the condition of the atmosphere, the direction of the wind, the state of the road bed and the construction of the engine and cars, and perhaps other conditions, that it may well be that in many cases one may listen attentively, and yet not be adequately warned of a tram’s approach.

Several of the witnesses who saw this train testify that although they listened they did not hear it, and the deceased, who were in a moving vehicle, would be in a less favorable position to hear than some of the witnesses so testifying. If the witness who, while hanging clothes in her yard, saw the train coming but could not hear it, and being for that reason apprehensive that deceased might not hear, screamed to them to notify them of their danger, it may well be that they could not hear no matter how carefully they listened.

The testimony shows that the sides of the cross road down which deceased were passing was lined with trees and shrubs, as was also the road through which the train was going.

It is shown that from where the deceased were passing the railroad track was not visible until the wagon passed the sidewalk, and the head of the horse was almost upon the rail track.

It appears that at that moment the driver tried ineffectually to hold in his horse. Most likely the horse at the same time discovered the train and in consequence became unmanageable.

Upon all the facts we are satisfied with the verdicts. Appellants do not claim that any errors were made in stating the rules of law. None are claimed except in refusing to nonsuit, and in that respect we think the court below was right

Judgments affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  