The negligence of the defendant is proved by the undisputed testimony in the case. The morning was dark; the only street light that could be of any service was usually out at this time in the morning; the street crossing was an important one, with eight parallel tracks over it; the defendant’s gates were usually down at this time of day, and yet the locomotive which crashed into Pruey was scudding along backward at twenty miles an hour, without giving any signal of its approach and without any light. Gross carelessness of this kind must be weighed in the balance when we are seeking to enforce the stringent rule imposed upon a wayfarer, to be vigilant as he approaches a railroad crossing. While the rule obtains that freedom from scrupulous watchfulness cannot be baldly inferred, yet the personal representative of a man who had been familiar with the surroundings, accustomed to observe and give heed to signals indicating an oncoming train, cannot be held to the strictest accountability where those in charge of the train are con*160fessedly derelict in their duty, and where there is no observer of the conduct of the decedent. Pruey had passed over this crossing to his work daily for three years, at about this time each morning; he was, therefore, familiar with the danger at this point; he knew from long experience the almost invariable habit of defendant’s servants to give the customary signals of an approaching train, and he was aware that a light was usually present upon it. This very familiarity with these facts and with the surroundings would unconsciously lessen somewhat the circumspection he would otherwise observe. He must still be watchful, but, in determining whether' he fairly met the duty devolving upon him, we must necessarily take into consideration the negligence of defendant’s agents and his own obvious wont to rely upon these warnings.
On the morning in question, as Pruey came over the bridge, the gates were down. This was of no significance, as the evidence, without contradiction, shows the gatetender, at this time in the morning, was ordinarily unmindful of his duties, as the gates were then generally down. Again, a freight train was passing, and Pruey undoubtedly waited for that to go over the highway and then endeavored to cross diagonally, in his customary manner, when he was hit by the backing locomotive, which was hauling a caboose on the second track. These facts are mainly inferential, but are confirmed by his daily mode of going to his work and the fact that Creighton testified he was in the street when he was hit. There is no proof that he looked and listened as he neared this track, and the contention of defendant’s counsel is, we must depend upon conjecture entirely to reach a finding that the plaintiff’s intestate fulfilled the duty of looking and listening as he approached this crossing.
In a case where death ensues as a result of a collision of this kind, and where there is no eye-witness of the occurrence, there is a relaxation of the rule requiring strict proof that the decedent was vigilant and observant as he advanced toward the track. The regulation exists in its integrity, but the proofs presented may be inferential, may be dependent upon circumstances, and still be adequate to satisfy the court of the absence of contributory negligence. As was said in Noble v. The New York Central & Hudson River Railroad Co. (20 App. Div. 42): “ In actions to recover damages for negligence resulting in death, where there are no eye-witnesses *161of the accident, the freedom of the deceased from contributory negligence maybe established by proof of facts and circumstances from which it may fairly be inferred that the deceased was not at fault.”' (Wieland v. D. & H. Canal Co., 30 App. Div. 85; Chisholm v. The State, 141 N. Y. 246.)
But in this case there were other facts which relieved the plaintiff’s intestate from the duty of looking and listening' for this engine. The morning was dark, foggy, misty, and, according to some of the witnesses, Cimmerian in its density, a darkness quite common in this latitude on a muggy, foggy morning, at six o’clock, in the early part of February. John Pruey, the son, testified : “I remember the kind of day it was on the morning of my father’s death. It was very dark and misty and warm. It had been raining through the night. The snow was about all thawed away. I observed the tracks of the Central road ; the snow was about all gone; what little there was there was all black with smoke and dirt - and one thing and another.”
The witness Sultenfuss described the condition as follows : “ That morning about six o’clock it was foggy, with the wind blowing from the east. It was very dark, so dark you could not distinguish an object very well at a distance of twenty feet. It was foggy; the snow was melting; there was ice on the sidewalk; it was raining and foggy like.”
The witness Decker in this manner: “ I got up about half-past six; it was a very dark morning; very cloudy. There had been a thaw; there was snow enough for sleighing, but there had been quite a thaw, and the snow was dark and dirty on top; muddy. On the railroad and on the bridge there was no snow. The snow in the immediate neighborhood of the crossing was slush more than anything else. It was dark from the dirt that was on it.”
It is, therefore, a legitimate deduction from the evidence that the morning was very dark, and there is much force in the contention that to look for this engine would have been useless, as it could not have been seen. It is urged, however, that Creighton’s testimony shows he observed this approaching train. That testimony simply made a contradiction in the evidence, and the credibility of these witnesses was for the jury to pass upon. (McNamara v. The New *162York Central & Hudson River R. R. Co., 136 N. Y. 650.) And Creighton was viewing the approaching engine, not from the rear, but by a side view, which may have enabled him to catch a glimmer of the headlight.
The philosophy of the rule requiring a traveler approaching a railroad crossing to look and listen for a train before venturing upon the tracks, rests upon a common-sense foundation. These are regarded as the most efficient acts in demonstrating the vigilance of such traveler and most likely to apprise him of danger. If to look would be futile, then the person is absolved from an obligation which would be wholly mechanical. If the view is obstructed so a person could not see a coming train unless he possessed the strength of vision described by the imperturbable Weller, then the failure to look is not carelessness. The same principle applies where to listen would be of no practical moment. (Smedis v. Brooklyn & R. B. R. R. Co., 88 N. Y. 13; Wieland v. D. & H. Canal Co., 30 App. Div. 85.)
As was said in the Smedis case (at p. 19), “ While it is true that a traveler on approaching a railroad crossing is bound to look and listen for an approaching train before undertaking to cross, it is only where it appears from the evidence that he might have seen, had he looked, or might have heard, had he listened, that a jury is authorized to find that he did not look, and did not listen.”
, The freight train had just passed the crossing as Pruey was struck. The rumbling noise and the clatter of that large train quite probably drowned the lesser noise of the locomotive which ran down upon decedent. The darkness of the night, the absence of artificial light, the direction and force of the wind and the din of the passing-freight train, in connection with the obvious negligence of the defendant, were sufficient to warrant a submission of this case to the jury.
In addition to the authorities already cited, the following tend to sustain the proposition that there was a question of fact in this case: Davis v. The New York Central (& Hudson River R. R. Co. (47 N. Y. 400); Fejdowski v. D. & H. C. Co. (12 App. Div. 589); Harper v. D., L. & W. R. R. Co. (22 id. 273); Judson v. Central Vermont R. R. Co. (158 N. Y. 604).
In the case of Daniels v. S. I. R. T. Co. (125 N. Y. 407), upon *163which some stress is laid, the flagman warned the intestate of the ¡approach . of the train. It conld be distinctly seen a long distance from the crossing. There was nothing to interfere with the view. The slightest observation, the slightest caution, would have apprised the traveler of its coming. While his deafness prevented his hearing, his eyesight was apparently unimpaired, but he went in front of the train without any care or vigilance. I think there is a wide variance between the facts of the two cases.
The learned trial judge instructed the jury clearly as to the caution required of a person approaching a railroad crossing. He then stated the rule which I have invoked, discussing it as bearing upon the subject of the intestate’s contributory negligence, stating “ that if he had listened he could not have heard the approaching train, or . if he had looked, he could not have seen the approaching train; ” then the jury were permitted to find that Pruey was not chargeable with negligence. The trial judge kept very fairly within the facts upon which this contention was based and did not overstep the rule of law applicable to this case.
The judgment and order are affirmed, with costs to the respondent.
All concurred, except Adams, J., dissenting, and Follett, J., not sitting.