
    Beckwith v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1889.)
    Railroad Companies—Injuries to Persons on Track—Negligence.
    In an action for injuries to a person on a railroad track, there was evidence that several of defendant’s tracks crossed the road where the accident occurred; that plaintiff stood and waited for a west-bound train to pass, and then, in crossing the tracks, was struck by an east-bound train; that, before crossing, plaintiff looked both ways, and saw no train approaching. The evidence as to ringing the bell and blowing the whistle of the east-bound train was conflicting. The track could be seen for a long distance, looking west. The west-hound train made considerable noise. There was a head-light on the east-bound train, but there was a switch-engine with a head-light standing near, and various other lights at different points along the tracks. The night was dark and hazy. Meld, that the questions of negligence and contributory negligence were properly submitted to the jury.
    Appeal from circuit court, Oneida county.
    Action by Joseph H. Beckwith, an infant, by John H. Beckwith, his guardian, against the New York Central & Hudson River Railroad Company, for damages sustained by reason of his being struck by a passing train on defendant’s road. Judgment was entered on a verdict for plaintiff, and a motion for a new trial on the minutes was denied. Defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      C, D. Prescott, for appellant. S. Cromwell, for respondent.
   Martin, J.

On the 25th day of February, 1888, Joseph H. Beckwith was injured by a passing train on the defendant’s road at its intersection with Peterboro street, in the village of Canastota, N. Y. The defendant's road runs east and west through the village, and at right angles with Peterboro street. Its tracks are straight for about a mile and a half west of this crossing. There was a side track on the north, and from that direction the defendant’s through tracks were in the following order: First, No. 4; second, No. 3; third, No. 2; and, fourth, No. 1. South of the defendant’s road was the track of the Elmira, Cortland & Northern Railroad. The plaintiff lived near, and was familiar with, this crossing. At about 10 o’clock on the evening of this accident the plaintiff and his brother approached the crossing from the north, and stopped about 20 feet from track Eo. 4, while a train was passing to the west, on track Eo. 3. When that train had passed, they walked onto track Eo. 4, and were struck by an east-bound train. There was a headlight on the engine. The train was moving at about 12 miles an hour. From the center of the side track the view west, on track Eo. 4, was unobstructed for a distance of about 635 feet. From a point between the side track and track Eo. 4, it was unobstructed for about two miles. The night was cloudy, hazy, and dark. A switch-engine, upon which there was a head-light burning, stood on the side track west of, and facing, the crossing. There was also several switch-lights near. The train going west on track 3 was a long one, and made considerable noise. On the trial the defendant moved for a nonsuit, on the ground that the evidence of the defendant’s negligence and plaintiff’s freedom from contributory negligence was insufficient to authorize the submission of those questions to the jury. The motion was denied, and an exception taken. The plaintiff had a verdict. The defendant now asks for a reversal of the judgment, and order denying a new trial, on the ground that the court erred in denying its motion for a nonsuit.

Thus the question presented for review by this court is whether there was sufficient evidence of the defendant’s negligence, and plaintiff’s freedom from contributory negligence, to justify the submission of those questions to the jury. The negligence imputed to the defendant was that it failed to sound the whistle dr ring the bell upon its engine as the train approached this crossing. On the trial several witnesses, who were at or near the crossing at the time, testified that no whistle was sounded, nor bell rung. The defendant’s witnesses testified that the whistle was blown for the station, and the bell was rung for about 80 rods before reaching the crossing. Upon this proof, we think the question whether the defendant was negligent in omitting to ring its bell or sound its whistle was a question of fact, and properly submitted to the jury. A more difficult question is whether there was sufficient proof of the plaintiff’s freedom from contributory negligence. The burden of showing affirmatively, either by direct evidence or by surrounding circumstances, tfiat the plaintiff was free from contributory negligence was upon the plaintiff. Tolman v. Railroad Co., 98 N. Y. 203. But where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question of contributory negligence is for the jury. Greany v. Railroad Co., 101 N. Y. 419, 5 N. E. Rep. 425. As was said by Huger, C. J.: “The question is whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact, for the jury.” Parsons v. Railroad Co., 113 N. Y. 364, 21 N. E. Rep. 145. In this case the plaintiff testified that he looked both ways before attempting to cross the defendant’s track; that he neither saw nor heard the approaching train. The evidence also discloses that the night was dark and hazy; that an engine, with a head-light burning, stood near, and facing the crossing; that there were several switch-lights in the neighborhood; that the train that had passed was making considerable noise; and there were several lights on the rear of the caboose. With this proof, we do not think the court could have properly held, as a matter of law, that the plaintiff’s failure to see and avoid this train was such contributory negligence on his part as would release the defendant from liability for its negligence. Greany v. Railroad Co.; Parsons v. Railroad Co., supra; Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. Rep. 128. We are of the opinion that the defendant’s motion for a nonsuit was properly denied. We have examined the other exceptions in the case to which our attention has been called, bub have found none that require special consideration, or that disclose any error that would justify a reversal of the judgment. Judgment and order affirmed, with costs. All concur.  