(dissenting):
Genesee street, the principal thoroughfare in the city of Utica, is six rods in width, and runs northeast and southwest. The defendant’s tracks, eight in number, cross this street practically at a right angle. North of the tracks is the Mohawk river, over which Genesee street is carried by means of a bridge on which there are two driveways for teams and two passageways for pedestrians.
The plaintiff’s intestate, who was a man fifty-one years of age, in good health and in the full possession of all his faculties, was at the time of his death a cook in the employ of a restaurant keeper whose place of business was on Genesee street south of the railroad tracks opposite what is known as “ Bagg’s Square.” The deceased resided with the plaintiff, who was his wife, on Genesee street north of the *166Mohawk river and about ten minutes’ walk from his place of business. For some three years prior to the accident he had been accustomed to go to his work at about six o’clock in the morning, and on the 8tli day of February, 1894, he left his home at the usual time and started in the direction of the crossing. A milkman entering-the city from the north passed over the river bridge at about the same time, and finding the railroad' gates down and a freight train passing westward on the first track south of the bridge stopped his horse at a point about ten feet north of the gates, got out of his sleigh and took hold of his horse’s head while the train was passing. As the caboose of the freight train passed west of the gateman’s. tower, a structure standing on a line with the east end of the bridge, an engine with a caboose attached, going east, passed over the crossing on the second track. This engine was running at the rate of' twenty miles an hour, and was moving backwards with no light on the rear end of the tender, and, as the evidence tends to show, without giving any signal of its approach. As it passed the caboose of' the freight train the milkman saw an object fluttering in the air and heard some one cry out, “ Oh, pick me up.” He ran at once to the object, which was then lying by the side of track No. 2, and which proved to he the plaintiff’s intestate, who had been struck by the-engine going east and was so seriously injured that he died in consequence thereof before the day closed.
In considering the one serious question which this case presents,, it may be assumed that the evidence amply sustains the conclusion reached by the jury that the defendant was chargeable with negligence in moving its engine over Genesee street without giving the customary signals; but in cases of this character the presence of negligence upon the part of the defendant is no excuse for the absence-of care upon the part of the person injured, and unless this rule which has been iterated and reiterated by the courts from time out of mind is to be abandoned, it would seem as though this were a case in which it ought to have some binding force.
So far as the record discloses, no one saw the plaintiff’s intestate until he was hurled through the air by the engine with which he came into collision. Exactly where he was when he was struck,, how he reached that point, and what precautions, if any, he took for his own protection do not appear. This much was conceded by the *167plaintiff’s counsel upon the trial and is not now controverted. It is insisted, however, that notwithstanding the absence of any affirmative evidence of the exercise of care upon the part of the deceased as he approached the crossing, the question of contributory negligence was one of fact, and that as such it was properly submitted to the jury. This contention, as I understand it, is based first upon the proposition that the deceased was excused from looking and listening for the engine which struck him, inasmuch as the situation was such that he could have neither seen nor heard it had he looked and listened, and upon the further proposition that the circumstances attending the accident were such as to permit the inference that due caution was observed by the deceased as he attempted to make the crossing.
It is undoubtedly the rule that a traveler upon a highway, who is about to cross the tracks of an intersecting railroad, is absolved from the necessity of looking and listening for approaching trains when the physical conditions surrounding him are such as to prevent his seeing or hearing a train if one were approaching (Smedis v. Brooklyn & R. B. R. R. Co., 88 N. Y. 13), and the learned trial justice instructed the jury in this case that if the evidence satisfied them that it was practically impossible, by reason of existing circumstances, for the deceased, by using his eyes and ears, to have detected the approach of the engine which struck him in time to have avoided the accident, they might find that he was not guilty of contributory negligence. I am by no means satisfied, however, that the plaintiff’s recovery can be sustained upon any such theory, for the reason that the evidence in the case will not permit the conclusion that the engine could not have been seen or heard by the deceased had he looked and listened.
It is true that the morning was dark and misty; that the locomotive was moving backward, with no light on the end of the tender ; that the track was moist with snow or rain, and that no bell was ringing or whistle sounding. But with all these circumstances present, the facts remain that between the first track south of the bridge, which is designated on the map as the “ Black River Track,” and the northerly rail of track No. 4, which is the next track south, a distance of twelve feet, there was absolutely nothing to obstruct the vision except a single telegraph pole, and that 'the engine with *168the caboose .attached could have been seen by any one looking for it, and was actually seen by the only witness of the accident, who was standing at least thirty feet from the point of collision.
This witness (Creighton) testified that, although the morning was muggy and misty, it was breaking daylight; that he could see the engine and caboose, and that the tender of the engine was backing east; that he saw the plaintiff’s intestate struck, and discovered that it was a man, and that he saw the engine so distinctly as to be able to form a judgment as to the rate of speed at which it was running. If, then, this witness observed all that he describes, at a distance of thirty feet, how can it, with any propriety, be said that the deceased, with unimpaired eyesight, could' not have seen the engine the moment he stepped beyond the track upon which the freight train was receding ?
It does not seem to me a sufficient answer to this proposition to say that, possibly Creighton was mistaken when he testified that daylight was breaking, and that he had no difficulty in seeing the engine. He, as has been stated, was the only witness of the accident, and without his testimony as to what he amp there would be absolutely nothing in the case upon which the plaintiff could rest her right to recover (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248); and it would be establishing an entirely new rule of evidence if we were to hold that his declaration that he saw Pruey struck by one of the defendant’s locomotives was sufficient to establish negligence upon the part of the defendant, but that it might be disregarded or explained away, in so far as it tended to disprove a state of facts inconsistent with the exercise of care upon the part of the deceased.
If it be said that this freight train may, to some extent, have prevented the deceased from hearing or seeing another train approaching upon the next track, the obvious answer is that he, being familiar with the crossing, and knowing that trains were liable to be encountered at any time upon one or more of the tracks, was bound to wait until the freight train had proceeded a sufficient distance to the west to enable him to discover whether another train was approaching upon either of the adjacent tracks. (Daniels v. S. I. R. T. Co., 125 N. Y. 407; Purdy v. N. Y. C. & H. R. R. R. Co., 87 Hun, 97.)
*169The remaining proposition has, I think, no firmer foundation upon which to rest than the one already considered.
The rule that a person who seeks to recover damages by reason of the negligent act of another must show affirmatively his own freedom from concurring negligence, has unquestionably been somewhat relaxed of late years. The courts still require that proof to be furnished, it is true, but it is now held that in actions 'for negligence causing death, the absence of contributory negligence may be established sufficiently to make it a question of fact for the jury, by proof of such facts and surrounding circumstances as reasonably indicate that the accident might have occurred without negligence upon the part of the deceased. (Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308 ; Tolman v. S. B. & N. Y. R. R. Co., 98 id. 198 ; Waldde v. N. Y. C. & H. R. R. R. Co., 4 App. Div. 549; Noble v. N. Y. C. & H R. R. R. Co., 20 id. 40.)
But the facts- and circumstances which will warrant such an inference must fairly and reasonably tend tó establish the existence of some cause or occasion for the accident which is consistent with the exercise of proper prudence and care upon the part of the deceased. Otherwise “ the inference of negligence is the only one left to be drawn, and the burden resting upon the plaintiff is not successfully borne, and a nonsuit for that reason becomes inevitable.” (Tolman v. S. B. & N. Y. R. R. Co., supra.)
In the present case, the facts relied upon to bring it within the rule which the plaintiff’s counsel invokes, are the darkness of the morning, the moist condition of the atmosphere, the approach of the engine upon a wet track, without any light upon its tender and without giving the customary signals, the presence of a strong east wind and the rumble of the freight train as it passed to the west on track No. 1. These are all circumstances which would be entitled to due consideration upon the question of whether or'not the plaintiff’s intestate saw or heard, or ought to have seen or heard, the train, had he looked and listened for it; but just how either or all of them tend to establish the fact that he did look or listen, or that he took any other precaution whatever for his own preservation, does not satisfactorily appear; and unless the rule contended for is to be so far extended as to permit juries to base verdicts upon the merest *170conjecture, I do not see how the plaintiff can avail herself of it. It will not do to say that Pruey probably exercised some degree of care in his attempt to cross the defendant’s tracks, simply because-that is what he ought to have done, for, as has been well said in a recent case, “Verdicts must stand upon evidence, and not upon mere conjecture, however plausible; and if the situation be such that the plaintiff cannot furnish the requisite evidence, the misfortune is his.” (Babcock v. Fitchburg R. R. Co., 140 N. Y. 308, 311.)
I have read the record in this case with great care, but without finding any evidence therein which, by a fair and reasonable construction, can be regarded as satisfying the burden which rested upon the plaintiff of establishing the absence of contributory negligence upon the part of her intestate; on the contrary, it seems-to me that the circumstances relied upon by her, so far from furnishing an adequate cause for the accident, and one which is consistent with the exercise of a proper degree of care upon the part of her husband, actually point in the opposite direction;
In saying this, I am not unmindful of the former decision of this-court in the case of Waldele (supra), nor of the decision of the second department in the Noble Case (supra), in each of which the rule was extended to a point beyond which I do not believe we ought to go, unless, as has already been suggested, we are prepared to say that in actions of negligence where death ensues no evidence whatever of any care upon the part of the deceased shall be-required.
It seldom happens that the facts of any two negligence cases are-alike, but this case in many of its features is quite similar to the Daniels Case (supra), in which it was said, referring to the circumstances relied upon to establish the exercise of a proper degree-of care upon the part of the plaintiff’s intestate, that “ the circumstances seems to point, not to an absence of negligence on his part,, but father to its existence. He was familiar with the crossing. He knew that there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision, in the direction from which the other train came, until it had passed the crossing and proceeded some distance beyond. The deceased apparently must have proceeded to cross-the track immediately after the down train passed the crossing with*171out looking up the road, because if he had looked after crossing the-south track before stepping on the north track, it is upon the evidence indisputable that he could have seen the approaching train. It is impossible to escape the conclusion on the evidence that the accident happened in consequence of his thoughtlessness.”
I am persuaded that the circumstances of this case lead irresistibly to the conclusion that the plaintiff’s intestate, after waiting north of the “ Black River Track ” until the freight train moving west had passed beyond the point where he was standing, started for his. place of business, in doing which he attempted to cross the intervening tracks diagonally and ran heedlessly into the engine which struck him.
Familiarity had doubtless bred within him contempt for whatever danger he was liable to encounter at this crossing; and believing as. I do that it was to this fact as well as to the defendant’s negligence-that the unfortunate accident which caused his death was due, I am. constrained to dissent from the prevailing opinions in the case.
Judgment and order affirmed, with costs.