(concurring):
I think the case in hand differs from Daniels v. SD. I. R. T. Co. (125 N. Y. 407). In that case it was said that the evidence is “ indisputable that he could have seen the approaching train ” if he had looked. That fact is not so clear from the evidence in the case before us.
In Rodrian v. N. Y., N. H. & H. R. R. Co. (125 N. Y. 529) it was said that slighter evidence of compliance with the duty cast upon the plaintiff “ might be deemed sufficient ” where the injured person was not alive and competent to testify.
In the case in hand the trial judge very carefully submitted the question of the deceased’s freedom from contributory negligence to the jury. He said : “ There is no witness to speak upon that subject. But there is another, rule of law which bears upon this question of contributory negligence, and that is, if a jury is entitled to find upon the evidence that it would have done a person no good to *164look or listen-—that if he had listeuded he could not have heard the approaching train, or if he had looked he could not have seen the approaching train — then it is permissible for them to find that the person killed was not guilty of contributory negligence, which would bar a recovery for his death, and that is really the rule which is invoked by the plaintiff in this case. It is said that under the circumstances of the approach of this engine and locomotive, the darkness, the noise of the passing freight train upon the other track, the absence of lights or the sounding of a bell or whistle upon this engine, which backed down upon the track — it would have been practically impossible for this intestate, by using his eyes and ears, as I have suggested, to detect its approach in time for him to have-escaped the accident. If you should find that that was so then, as I have suggested, it would be permissible for you to find that this intestate was not guilty of contributory negligence.”
There is not absolute certainty in the testimony of Creighton as to where he was looking at the time he made the observations, non-exact evidence of the location of the deceased at the time of the observations testified to by Creighton. The interpretation of the evidence bearing'upon the circumstances attending the accident was for the jury, and it ought not to be said, as matter of law, that the. deceased was guilty of contributory negligence, or that the evidence did not warrant the jury in finding that he was free from contributory negligence. (Greany v. L. I R. R. Co., 101 N. Y. 419 ; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72; Beckwith v. N. Y. C. & H. R. R. R. Co., 54 Hun, 446; affd., 125 N. Y. 759; Judson. v. Central Vermont R. R. Co., 158 id. 604.) In the course of the-opinion delivered in the latter case, the Kellogg case is referred to, and Judge Martin says that the Kellogg case held: “ It is not, as a matter of law, negligence for a person approaching a railroad in a. carriage upon a highway to fail to stop, but that his omission to do so-is a fact to be submitted to the jury. The duties which rest upon a. traveler attempting to cross a railroad are there stated, and it was in effect said that he is not bound to exercise the greatest diligence, but only such as a prudent man approaching such a place would ordinarily exercise, and that even where he could -probably have avoided the accident by stopping, he is not, as a matter of law, required to do-so, and that the courts of this State have so held ; but if he ought *165to stop and he omits it, it is a fact to be submitted to the jury, with the other facts in the case bearing upon that question.”
He also refers in the same opinion to Stackus v. N. Y. C. & H. R. R. R. Co. (79 N. Y. 464), and he refers approvingly to the opinion of Church, Ch. J., and quotes from that learned judge the following language : “ Whether he ought to do any or all of these things in a given case, in order to relieve himself from the charge of negligence, is for the jury to decide in view of the circumstances developed.”
Near the close of the opinion he adds: “ As we have already seen, the plaintiff was not bound to the greatest degree of diligence which he could have exercised, but to exercise only such care as a prudent man approaching such a place would.”
The case seems to have been carefully tried by the learned trial judge, and closely and carefully submitted to the jury, and while the case is close on its facts, and may be regarded as a border case upon the question of whether the evidence interpreted by reading it would lead to the conclusion that the deceased was not free from contributory negligence, yet, under all the circumstances disclosed, I incline to the conclusion that whether the plaintiff was free from contributory negligence was a question of fact properly confided to the jury. The jury having found in favor of the plaintiff, I am disposed to give my vote in favor of sustaining the verdict.
MoLenmah, J., concurred.