
    Patrick Hennessy, as Administrator, etc., of Anastasia Hennessy, Deceased, Respondent, v. The Northern Central Railway Company, Appellant.
    ■ Negligence—failure of proof that a decedent looked before crossing a railroad track.
    
    Where a woman, when last seen alive, was at a street crossing at night about to pass over a railroad siding toward its main track, near which her dead body was subsequently found, and where- "she was presumably struck by a train passing at that time, of which the headlight must have been visible to her for a-distance of at least 100 feet before she stepped in front of it upon the main track, the circumstances do-not warrant the inference that the deceased looked or listened as she passed over the siding and upon the .main track, and it is incumbent upon the plaintiff, in an action brought to recover damages for her-death, tó show that the deceased was free from contributory negligence.
    Appeal by the defendant, The Northern Central Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 1st day of December, 1896,, upon the verdict of a jury, with notice of an intention to- bring up for review upon such appéal an order entered in said clerk’s office on the 7th day of October, 1896, denying the defendant’s motion for a,' new trial made upon the minutes. . •
    
      
      Hmen & Redfield, for the appellant.
    
      0. P. Hurd, for the respondent.
   Landon, J.:

This action was brought to recover damages for negligently causing the death of the plaintiff’s wife. On the night of the 8th of May, 1895, the plañí tiff’s intestate, Mrs. Hennessy, aged sixty-five years, in good health, left her house on the south side of Fourth street, 250 feet east of defendant’s railroad in the village of Watkins, to go to a grocery store upon the northerly side of the same street, about the same distance west of the railroad. The defendant’s railroad mosses Fourth street at about right angles; the street is sixty-six feet wide and runs about east and west, and the railroad north and south. There are three tracks at the crossing, the main track upon the west, a siding eight or nine feet" east of it, and a switch track about four feet east of the siding, the latter diverging to the east so as to be twenty-four feet from the siding on the north side of f the street. The main track and the switch track curve sharply toward the west, north of the street. Mrs. Hennessy approached the crossing upon the south side of the street, and waited there as a freight train passed north on the siding east of the main track and as a pusher engine followed it on the same track, i As the freight train and pusher had passed she was seen, going further west, but was not further seen alive. . Just after the freight train and pusher engine behind it had passed north, and as the rear end of the pusher engine stood still, either upon or just north of the north cross or sidewalk of Fourth street, the passenger train due at that time passed south on the main track going from eight to ten miles an hour. Mrs. Hennessy was afterwards found dead twenty-five feet south of the south side of Front street near the main track. No one saw the train strike her. The fair inference from the facts is, that after the pusher engme following the freight train had passed north, she walked upon the south side of the street over the switch and side tracks upon the main track, and was there struck and killed by the passenger train.

There is no direct evidence that she looked or listened for an a])proaching train before she stepped upon the main track, and we must have recourse to whatever circumstances throw light upon the .question. . We, have the facts that she was in good health and in the full possession of lief faculties., and had the usual desire to avoid injury. It is probable that the pusher engine and freight cars obstructed her view of the coining passenger train when she started over the switch track. She* was familiar with this crossing, was seen, to start to go over it, to be looking west, the direction she .was going, to have her shawl over her shoulders and partly over her head, grasping it with one hand near her neck. It . is clear from the evidence that as she went upon the siding and across it, and then over the eight or mine .feet space between the siding and the main track, about fourteen feet in all, she could have seen the bright headlight of :the locomotive of the coming train if she, had looked, anywhere within four" hundred feet away.. Biit.it probably-was not so far away when she first came within sight of it.’ It could not have taken her inore than nine seconds’ to walk fourteen' feet, and in' that time the train, if moving ten miles .an hour, would advance one hundred and thirty-two feet. Thus she might have seen the train for one hundred feet or more, before she stepped in front of it. But however this might be, she had, ample opportunity to look after the obstruction had moved away, or after she. had passed beyond it, and if. she had looked, she could have seen the coming train; The burden was upon the. plaintiff to show Mrs. Hennessy’s freedom from contributory negligence. Fo inference that she did look or listen can be. drawn from the circumstances. -

We, therefore, without being brought' to the consideration of the evidence adduced in support of the charge of negligence against the defendant, must reverse the judgment.

All' concurred.

Judgment and order reversed and a néw trial granted, costs to abide the - event. ■  