On the evening of November 2,1895, at about five minutes after six o’clock, in that part of the city of Yonkers where Ashburton avenue crosses the defendant’s railway, the plaintiff’s husband, Thomas Noble, was struck and killed by the locomotive of the defendant’s train known as ,the Chicago Limited, on its way from Albany to New York. No one saw the accident, but shortly after the train had passed southward, Noble was found dead near the track, fifty-six or fifty-seven feet south of the crossing, with his skull fractured and liis side completely crushed in. Near him lay a small lantern called a marker, which was subsequently found to belong to the pilot beam of the locomotive of the Chicago Limited, and the door of this lantern was under Noble’s left breast, within the lapel of his overcoat. Neither the engineer nor the fireman of the train was aware that any accident had occurred 'until they discovered that the marker was missing and that there was blood upon the crossbeam of the locomotive when they arrived at the Grand Central Station in New York.
The administratrix has recovered a verdict of $10,000 against the .railroad company for the negligent killing of her husband under these circumstances. We are asked to reverse the judgment entered on that verdict and to grant a new trial, on four grounds: (1) Because the evidence did not justify a finding that the deceased was *42free from contributory negligence; (2) because it -did - not establish 'any negligence on the part of the defendant; (3) because the" trial judge instructed the jury that negligence might be predicated of." the speed of the train under the conditions existing at the time and. place of the accident; and (4) because the damages are excessive.
As to the first point, I think there was sufficient evidence to take-the'question of contributory negligence to 'the jury. When last seen, alive the deceased was at work in his stable, which was west of' the railroad. His way home would take him over the track, and it is altogether probable that he undertook to cross at Ashburton avenue,, and was-there struck by the train,, which Was running at; the rate of between thirty-seven and forty miles an hour,, and would, carry him in a single second to the place where his body was found.. The gates maintained by the defendant at the crossing were -down,, but no negligence can be imputed to Noble from the fact that he-attempted to cross while they were in this position, as it appeared, that it was the custom -to keep them down on foggy and stormy nights, except when they were raised to allow teams to pass. The-night of the accident was dark and very foggy. “ As we passed through Ashburton avenue,” says tlie engineer of the Chicago-Limited, “ you could not.see the track at all ahead of you hardly on. account of the fog and darkness.” On a switch or side track north* of thé crossing stood a freight car or freight cars in such a position, with reference to the approaching train as to interfere with the view until a person was 'very close to the track. A northward-bound, freight train had just passed the crossing on one of the tracks to-the east or must have been passing over-it as Noble arrived there'.. His duty was to look and listen. But to look was of no avail if the* car or cars on the Siding obstructed his vision, as may well have-been the case in the fog, without his perceiving that there was any such obstacle there or what the nature of the obstacle was. And; while there is evidence that the engine bell' on the Chicago Limited, was rung as it neared Ashburton avenue, the noise of the norths bound freight train could readily render its sound imperceptible to* a listener situated as was the plaintiff’s husband when he endeavored, to cross the track.
In actions to recover damages for negligence resulting in death,, where there are no eye-witnesses of the accident, the freedom of the? *43deceased from contributory negligence may be established by proof of facts and circumstances from which it may fairly be inferred that the deceased was not at fault. (Johnson v. Hudson River R.R. Co., 20 N: Y. 65; Hart v. Hudson River Bridge Co., 80 id, 622; Jones v. N. Y. C. & Hudson R. R. R. Co., 28 Hun, 364; affd., 92 N. Y. 628 ; Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 id. 198.) In the case last cited it is said that if the surrounding facts and circumstances reasonably indicate or tend to-establish that the accident might have occurred without negligence on the part of the deceased, a question of fact may arise to be solved by a jury, requiring a choice between possible but diverging inferences. The case at bar seems clearly to fall within the class thus-mentioned ; and it is easy to find instances in the reports where recoveries have been sustained upon less cogent proof than is here presented, as tending to establish the absence of contributory negligence.
We are also of the opinion that the case was properly submitted-to the jury upon the question of the defendant’s negligence. The learned trial judge did not say that negligence was to be inferred from the high speed of the train alone, but held that it might be predicated upon the speed in view of the existing conditions. This instruction is well supported by authority. ■ (Salter v. Utica & Black River R. R. Co., 88 N. Y. 42, 50; Thompson v. N. Y. C. & H. R. R. R. Co., 110 id. 636.) It was most appropriate in the-present case when regard is had to the circumstances as they existed at Yonkers when this train came along and killed the plaintiff’s husband; for the jury were authorized by the evidence to find that the railroad company, by allowing standing cars near the crossing, to obstruct the view of approaching trains, had itself created a. condition of things which demanded a decreased rate of speed at this point.
The verdict was liberal, but not so large as to justify us in interfering with it as excessive. .
The judgment should be affirmed, with costs.
All concurred.
Judgment and order unanimously affirmed, with costs.