
    Margaret C. Miller, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—collision at a crossing between a locomotive and a carriage -^preponderance of evidence as to the ringing of the bell and the sounding of the whistle.
    
    In an action to recover damages for personal injuries, sustained by the plaintiff in consequence of a collision between a carriage in which she was riding and one of the defendant’s locomotives at- a highway crossing, the plaintiff and the two persons who were riding with her in the . carriage testified that while they were approaching -the crossing they listened for the sound of the bell or whistle on the locomotive or the automatic bell at the crossing but heard none.
    The engineer and fireman of the locomotive and three disinterested witnesses testified to the effect that the signals were given. It was not- disputed that thfe automatic bell at the crossing was ringing immediately after the collision.
    
      'Held, that although the testimony of the plaintiff’s witnesses ■ as to the absence of the signals was not of a mere negative character, it was overborne by the testimony given by the defendant’s witnesses, and that a judgment in favor of the plaintiff should be reversed.
    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 Franklin on the 9th day of April, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 5th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Martin, E. McClary, for the appellant.
    
      Badger & Cantwell, for the respondent.
   Edwards, J.:

This action was brought to recover damages for injuries sustained by the plaintiff in consequence of the alleged negligence of the defendant, - causing a collision between one of its engines and a vehicle in' which the plaintiff was riding on July 25, 1900. The plaintiff recovered a verdict for $1,000.

The collision occurred at the intersection of the defendant’s railroad, running northerly and southerly with the highway-running easterly from the village of Malone. The railroad crosses the highway at grade. The defendant’s road at and south of the crossing was constructed through a cut, and there was on the west side of the road, south of the highway, quite a high bank which obstructed the view of travelers going east on the highway of any train south of the crossing until at a point about fifty feet west of the track: . The approach to the crossing from the west is up a hill until within about sixty-four feet from the crossing. A person standing at that point on the highway, sixty-four feet westerly from the track, could see only the top of a rod thirteen feet high standing one hundred and thirty-five feet southerly from the crossing. Fifty feet westerly from the track one could see up the track, southerly, about one hundred and fifty to two hundred feet. Within the distance of forty feet from the crossing there is an unobstructed view of the track south for a thousand feet.. The plaintiff, on the occasion in question, was, on the invitation of Millar Shonyo, riding in a top carriage with him and his wife, proceeding westerly on the highway leading from the village of Malone. Shonyo, the driver, was in the middle of the seat, sitting on a mackintosh rolled up, between his wife on the south side of the carriage and the plaintiff on the north side. Shonyo says that when he got at the top of the hill, about ten rods from the track, he put his head outside of the carriage, the top of which was up, and looked out on the right-hand or south side and listened, but did not hear any engine coming; that he tried to look south for a coming train, but the bank obstructed his view. He started the horse into a small jog, and as they came around the bank where he could see the track southerly he saw an engine of the defendant running backwards ; that his head had been out and he had been looking all this time. When he discovered the engine the horse was ten or twelve feet from the track. He pulled up the horse as soon as he could and the horse stopped with his forward feet over the first rail, when the engine struck him, the carriage was smashed and the occupants- thrown into the ditch. Shonyo’s wife and the plaintiff also say that Shonyo, the driver, was looking out of the carriage southerly all the time until the collision. Mrs. Shonyo says that she was looking out of the front of the carriage at the automatic bell on the north side of the highway and west of the track. The plaintiff says that she was sitting on the left-hand side looking out of the front of the carriage directly to the north at the automatic alarm bell.

On the question whether the defendant gave any signals of the approach of the locomotive there was a conflict of testimony. Shonyo says that from the time he was forty feet from the track until he was thirty feet, he was listening for the bell on the engine and the automatic bell at the crossing and for a whistle, and heard none. Mrs. Shonyo says that during the time her husband was looking to the south she was listening to see if she could hear any whistle or bell, but did not hear any nor see the engine until it struck. The plaintiff says that she was watching the automatic bell at the crossing and was listening for any sound, particularly of this bell, and did not hear any. On the part of the defendant, the engineer, Black, testified that he gave two long and two short blasts at the whistling post, 1,320 feet from the crossing, and started the automatic bell on the engine, which continued to ring until after the accident; that he was about 200 feet from the crossing when he first saw the carriage and at once applied the brake and reversed the engine. Feeney, the fireman, also testifies to the blowing of the whistle at the. Whistling post, to the ringing of the automatic bell on the engine after the blowing of the whistle and that it was ringing when they reached the crossing. Bridget White, who lives about 'five or six rods east of the crossing, says that before the accident she heard the signal bell ring, then heard a whistle blow; the engine was coming from the south; when she first saw it it was forty or fifty feet south from the crossing and the whistle was blowing; she couldn’t swear that she heard the bell on the engine ring, but she heard the automatic bell at the crossing and the whistle. She says the automatic bell began to ring before she saw the engine. James McGrath, who lives about fifty rods from the crossing, says that at the time of. the accident he was going west towards the crossing; that he heard the engine whistle and later heard both bells, the stationary bell and the bell on the engine; that he heard the whistle blow and heard the bell at the crossing ring before he saw -the engine. Napoleon Forkey says he crossed the track just before the accident; that while crossing he stopped, looked up the track, southerly, and saw the engine coming; that he' stopped to see if it would whistle and heard it whistle two or three times; he walked forty or fifty feet and met the carriage and turned around and called out to them that an engine was coming, which Shonyo and the ' plaintiff say they did not hear. He says he heard the bell at the crossing ring before he saw Shonyo; that it was ringing when he stood at the crossing and when he left the crossing and walked towards the plaintiffs carriage.

Although the testimony of the plaintiffs witnesses as to the absence of the signals is not of a mere negative character, I think it apparent that_ while they were proceeding towards the track, by reason of the rumbling of the carriage or some other circumstance, their attention must have been so diverted that they failed to hear the signals which were clearly proven by the officers of the defendant in charge of the locomotive and three disinterested witnesses to have been actually given. It is undisputed that the automatic bell at the crossing was ringing immediately after the collision.

Upon the entire evidence in the case we are satisfied that the plaintiff has not fully carried the burden which the law places upon her to establish the negligence of the defendant by a preponderance of evidence, and that justice requires a reversal of the judgment and a new trial.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  