This action was brought to recover damages for the death of the intestate, the plaintiff’s son, on the 5th of April, 1895, resulting from injuries alleged to have been caused by the negligence of the defendant.
The defendant in this action operates a steam railroad on Eleventh avenue in the city of New York; and on the night in question, between nine and ten o’clock, the deceased, while attempting to cross Eleventh avenue at or near the south crosswalk of Forty-fifth street, from east to west, was struck by an engine drawing freight cars and killed.
The witnesses upon the part of the plaintiff testified to seeing the deceased at or near the curbstone at the southeast corner of Eleventh avenue and Forty-fifth street, and there is evidence from which *65the jury might find that the deceased looked up and down the avenue at this spot. He then started to cross the street, and upon reaching the most easterly rail of the tracks of the defendant he was struck by the engine, run over and killed. These witnesses testified to seeing the headlight of the train, either in the middle of the block between Forty-fourth and Forty-fifth streets, or as low down as Forty-fourth street. They testified that they could not tell whether or not the train was in motion, it being impossible, when a train is not moving faster than this one was, to determine that fact from simply seeing the headlight. It was a clear night, and nothing obstructed the view of the deceased. There was another train coming down the avenue upon the other track, and the accident happened just as the two trains were about passing each other. There is no evidence that the deceased looked either one way or the other after he started to cross the avenue. The distance between the curb and the easterly rail of the track was twenty-two feet three and one-half inches. It appears from the evidence that when the deceased reached the easterly rail the engine was there, and, as already stated, struck him. One of the witnesses testified that the train was proceeding at the rate of about twelve miles an hour; another that it was going faster than horse cars ordinarily went. But the evidence was entirely unsatisfactory, because it appears from their testimony that the witnesses could not tell whether the train was in motion or not, or its exact location when they first saw the headlight. It is difficult to understand how, under these circumstances, they could form a judgment as to the speed of the train. Some of the witnesses upon the part of the plaintiff swore that they did not hear any bell rung; one swore that it was not rung, and it is conceded that no whistle was blown, and that it was not customary in going through the streets to blow a whistle.
At the close of the case a motion was made to dismiss the complaint, which was denied. The defendant called as witnesses the engineer and fireman of the train in question, who testified that the bell was ringing. The fireman testified to seeing the deceased before he reached the track, but that he did not expect that he would go upon the track; and that, as soon as he was assured of this fact, he called to the engineer who stopped the train as quickly as possible.
The case was submitted to the jury and the court was requested by *66the defendant’s counsel to charge that looking when at the curbstone, the point at which the man started, was not a compliance with the legal obligation resting upon the deceased, and that if the deceased did not look to the south after he had left the curb, a recovery cannot be had. This request was refused and we think erroneously so. In the case of Tucker v. N. Y. Central & H. R. R. R. Co. (124 N. Y. 308) it was distinctly held that not looking before stepping upon the track was negligence, and this seems to be the tendency of decisions. For a party upon approaching a steam railroad to look when he is twenty-two feet from the track, and not to look again, is certainly not using that diligence which a person of ordinary prudence would use before crossing tracks of that description.
’We think, therefore, that the court failed to hold the deceased to that degree of care which a person of ordinary prudence would exercise under the facts disclosed by the evidence in the case.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.