CORDELL v. N.Y. CENTRAL AND HUDSON R.R.R. CO

EARL, J.

To maintain this action the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant, and this she must show by competent proof. It must not be left to mere speculation. She has the burden upon the whole case to show that the negligence of the intestate did not in any degree contribute to the accident.

The care which persons are required to exercise at railroad crossings to avoid danger is such as prudent persons conscious of the danger to which they may be exposed usually exercise. And this requires the vigilant use of the ear in listening, and of the eye in looking for approaching trains. When there is no evidence tending to establish such care, it is the duty of the court to nonsuit. ( Beisegel v. N: Y.C.R.R. Co., 14 Abb. [N.S.], 29.) In Reynolds v. N.Y.C. and H.R.R.R. Co. ( 58 N.Y., 248), ANDREWS, J., said: "The absence of negligence on the part of the person injured must be found by the jury in order to justify a recovery against a defendant who is sued for damages for a personal injury caused by negligence. It belongs to the definition of the cause of action that the injury must have been occasioned solely by the negligence of the defendant, and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault, which contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit."

When a person has been killed at a railroad crossing, and there are no witnesses of the accident, the circumstances must be such as to show that the deceased exercised proper care for his own safety. When the circumstances point just as much to the negligence of the deceased as to its absence, or point in neither direction, the plaintiff should be nonsuited. The presumption that every person will take care of himself from regard to his own life and safety, cannot take the place of proof. Because human experience shows that persons exposed to danger will frequently forego the ordinary precautions of safety.

There were four persons who witnessed this accident, and have been called to testify to what they saw. Let us first consider this case with their evidence eliminated, and then see how it stands. The accident happened on the southerly track of the railroad, between one and two o'clock in the day time, while the intestate was attempting to cross the track on foot. He lived near the track, and knew where it was, and all its surroundings. He was not incumbered with any hindrances, was a man of mature age and judgment, and possessed of all his faculties. There was no wind or storm to interfere with sight or hearing. He knew that track was used for trains going east, and that danger was mainly to be apprehended from the west, and while he may have known that no particular train was due at that time, he must have known that trains are frequently behind the schedule time. He had no reason to expect any signal or warning of the approach of a train because they were not customary at that point. This was the emigrant train of twenty-one cars going at a rapid rate of speed, and necessarily making much noise. There were two tracks further north than the one upon which the intestate was killed, and there was a gravel train at the same time going west upon the most northerly track. That was a train of eleven cars moving slowly and making less noise than the train from the west. There were obstructions west of the crossing intercepting to a considerable extent sight in that direction; yet, according to the evidence most favorable to the plaintiff, it was possible to see at least forty feet westerly before getting upon the track. Facts which are beyond dispute it seems to me show that the deceased could have seen much further in that direction. While these obstacles may have imposed upon the railroad company the duty of greater caution in running its trains at that point, they also imposed upon the deceased greater care to avoid danger in crossing the track. Now, suppose, under these circumstances, he had been found killed there, no human eye having witnessed the accident, could the plaintiff have recovered? We think not. There would have been no evidence from which a jury could justly have inferred that he used such care to avoid the danger as the law requires. A jury could not have indulged in the speculation that he looked both ways, and that "the train stole down upon him" unawares and killed him. No person could have said that the exercise of proper vigilance on his part would not have saved his life.

But if we look at the evidence of the eye witnesses of the accident, the case is still less favorable for the plaintiff. She called one, the engineer of the emigrant train. He testified that just before he saw the deceased he looked northerly toward the gravel train going west, and when he turned his eyes in the direction his train was moving, he saw the deceased two steps from the south rail of the track, and saw him step twice, the second step taking him just over that rail, and then he gave a signal, and the engine struck him. The deceased was looking eastwardly away from the approaching train, and when the witness first saw him was 150 feet distant. This evidence conclusively shows carelessness. The deceased could have seen the train at least as soon as the witness saw him. If he had then looked and stood still he would have been safe. He would certainly have been safe if he had stepped backward instead of forward. There was nothing to prevent him from arresting his progress to the fatal spot, and the consequence of his death should not be visited upon the defendant whose carelessness, if any, was certainly no greater than his.

The three other witnesses who were called by the defendant make the defense still stronger. They testified that they saw the deceased come upon the track, and stand there facing the east for some time before he was struck. They may be mistaken as to the length of time he stood there, and other particulars, but they concur with the plaintiff's witness in the fact, that he was heedlessly there, in a place of danger, looking away from the direction from which danger was to be apprehended. It does not help the plaintiff to maintain that these witnesses were not to be believed, because their evidence could be stricken out without materially weakening the defense.

Without therefore examining other errors alleged to have been committed upon the trial, for the reasons stated, the plaintiff should have been nonsuited, and the judgment must be reversed, and new trial granted, costs to abide event.

All concur, except CHURCH, Ch. J., not voting; and HAND, J., of counsel not voting.

Judgment reversed.