• I dissent from the prevailing opinion. Woodworth, the deceased, who had been a railroad man in the employ of the defendant, lived on the west side of the defendant’s tracks near the station at Mont-rose, where there is a plank crossing over the tracks, which run about north and south. The crossing is nearly at right angles with the tracks, bearing a little to the north. At the crossing there are five tracks. Commencing on the west is what is known as the south-bound switch; next the south-bound main track; next the north-bound main track and next are the two north-bound switches. To the north of the crossing and between the rails of the main' track are iron troughs for the purpose of enabling moving trains to take up water. In the south-bound track the end of the trough nearest the crossing is about sixty feet therefrom, and on the day in question trains going south had thrown water and spray upon the crossing, the result being that ice was formed thereon; there was also some snow upon the ground.
Shortly before the accident Woodworth stopped at the station west of the crossing and left to transact some business at a stable on the east side of the tracks. At seventeen minutes after six a northbound express train, some ten minutes late and running at the rate *34of twenty-five miles the hour, passed the station without sounding the Bell or whistle, but the widow of the deceased and others in the vicinity heard the noise or rumbling of the train as it approached the crossing.
Mr. Lent, a witness called by the plaintiff, testified on his direct-examination that there was an abrupt curve south of the crossing, “ a few yards south of this crossing,” and on his cross-examination he said, pointing to the diagram in evidence: “ The crossing is here and the curve commences some place down here (indicating on the map) five or six hundred feet, I should judge.”
This map, which is annexed to the record, shows the location of the crossing and a portion of the track extending southerly for a distance ‘ of 300 feet. Beyond this is a blank space. On the map is a statement that it is drawn on a scale of 40 feet to the inch, though the witness, through an evident mistake, spoke of it as being drawn on a scale of 20 feet to the inch. There was no-abrupt curve shown by the map on any portion of this 300 feet of track, although there is a curve so slight as to be hardly manifest on the map. When the witness said: “ The curve commences some place down here,” he could not have, meant at any portion of the 300 feet of track laid down on the map, as there was no abrupt curve; and I assume that he must have pointed to the blank space below the track laid down on the map. I think, thérefore, that when he said ■ the curve “ commences ” he was speaking of the commencement nearest the crossing and not to- the commencement at the lower end, which was-farthest away from him. So if this witness who was called for -the plaintiff is to be credited, there was a straight track of more than 300 feet below the crossing, upon any part of which and for a considerable distance beyond the train must have been visible to the-deceased.
Wyant, who was standing at a store kept by Wilkins, which is 25-feet from the crossing on the westerly side of the track, testified that he could see the track south of the station. There was an old pickle house, some 200 feet long, south of the station, and when the leaves were off the trees he could see the light in a railroad tower about 4,000 feet distant. He said : “ You cannot look right straight down and see the track itself south of the station, on account of the *35old pickle house. You can see a train coming along.' You can see a train further south than the pickle house and also just south of the station. The space between the station and the pickle house is thirty or forty feet.”
There is no evidence as to any act of Woodworth after leaving the station. He was found dead at forty minutes after seven, between the north-bound and south-bound main tracks, his head near a mail crane which was a few feet north of the crossing, his feet being about a foot north of the crossing. There was a gash in the head and one boot was missing. His hat was found upon the engine when the train arrived at Poughkeepsie. It is clear that he was struck and killed by the engine of that train.
The evidence is sufficient to prove negligence on the part of the defendant in failing to sound a whistle or ring a bell while the train was approaching the crossing. Our difficulty arises upon the question of the contributory negligence of the deceased, a point upon which the learned trial justice had equal difficulty. He said: “Nobody saw him at the time he crossed the track. Nobody saw him go to the track, nobody saw him on the track, nobody saw the train strike him, and no human eye, so far as you know, and, therefore, no human being can tell you just what happened at the time this unfortunate occurrence took place. Then you say at once, how are we to know, how are we to become satisfied that he exercised ordinary care ? Well, I have decided, after some hesitation, to leave it to you to say under all the proof' in the case, whether he did or did not exercise ordinary care. You must, however, be able to find it from the evidence in the case.”
In Pruey v. N. Y. Central & H. R. R. R. Co. (41 App. Div. 158) Mr. Justice Spring, writing for the court, stated the rule applicable to cases of this character as follows (p. 160): “ 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 *36(20 App. Div. 42): In actions to recover damages for negligence resulting in death, where there are no eye-witnesses of the accident, the freedom of the deceased 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.’ (Wieland v. D. & H. Canal Co., 30 App. Div. 85; Chisholm v. The State, 141 N. Y. 246.)”
In the Noble Case (supra), affirmed without opinion in 161 New York, 620, we affirmed a judgment in the case of a person killed at a railroad crossing at Ashburton avenue, Yonkers, during a very dense fog, by the south-bound Chicago Limited Express train running between thirty-seven and forty miles an hour, there being a. freight train on either side of the track, and a north-bound freight train having just passed. Mr. Justice Willard Bartlett, writing the opinion, said (p. 42): “ The night of the accident was dark and very foggy. As we passed through Ashburton avenue,’ says the 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 the 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 ears 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 north-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.”
The case at bar differs from the Noble case. There was no fog. One of the witnesses said: “ I think it was clear. It might have been ■ snowing a little bit. I do not know that it was snowing, because I am not sure of it. I know there was snow on the ground.” The deceased, in passing through the opening between, the cars on the south-bound switch, had a distance to cover of twenty-*37five feet to the first rail of the north-bound track; and’ while crossing this space he could have had an unobstructed view for several hundred feet. Though the engine was not sounding a bell or whistle, its headlight was visible to him, if he looked, for a distance of several hundred feet, with nothing to obscure his vision; and I see no escape from the conclusion that Woodworth either did not look for the train, or, seeing it, took the risk of crossing, and was, therefore, guilty of contributory negligence in attempting to cross ahead of it. It is possible that he did look, and, seeing the train several hundred feet away, concluded that he had time to cross the track in safety, but fell upon the ice and snow which covered the crossing, and, being unable to recover his footing, could not escape the approaching train; but this is merely speculative.
In Wilcox v. Rome, Watertown & Og. R. R. Co. (39 N. Y.358) the court, by a unanimous vote, reversed a judgment for the plaintiff, and held that a nonsuit should have been granted. The case is very similar to the one at .bar. The plaintiff’s intestate was killed by a train of the defendant while he was passing on foot a crossing of the defendant’s road. At the time of the accident the deceased had gone to a lime kiln nearby for a pail of mortar. He left there to go home, and the last seen of him before the engine struck him was when he was crossing a cattle guard at the crossing. The court said (p. 360): “ At the time when the occurrence took place he was on the public highway, where he had a perfect right to be, for the purpose of traveling or of crossing the track. He was familiar with the locality, having lived for some time in the neighborhood, and probably was acquainted with the times for the running of the trains. It was not the time for any regular train to pass; but engines and trains were passing at all hours of the day and night. * -» * The evidence does not show whether the deceased, before attempting to cross, looked up and down the track to ascertain whether a train was coming; but it appears the engine or train was in plain sight, as he could see for a distance of seventy or eighty rods. It is a fair and reasonable presumption, arising from all the circumstances attending the transaction, that he did not look, for had he done so he must have seen the engine approaching, and he could have escaped and his life would have been saved. I think, therefore, that we must assume that he did not look, and in failing *38to do so he neglected a plain arid imperative duty, and was guilty of negligence, which precludes a recovery.” It was also held that the negligence of the company in not, ringing a bell or sounding the whistle did not excuse the other party from the exercise of ordinary care and prudence in attempting to cross the track of the road.
In Hennessy v. Northern Central R. Co. (17 App. Div. 162) a woman, when last seen alive, was at a street crossing, at night, about to pass over a railroad siding toward the main track, near which her dead body was subsequently found and where she presumably was struck by a train passing át that time, the headlight of which must have been visible to her for a distance of at least 100 feet. The court held that these circumstances did not warrant the inference that the deceased looked or listened when she passed over the siding and upon the main track; that no inference could- be drawn that she did. look-or listen, and that her freedom from contributory negligence was not shown. The judgment for the plaintiff was reversed.
In Wiwirowski v. L. S. & M. S. R. Co. (124 N. Y. 420) the deceased and his wife were crossing railroad tracks in the city of Buffalo, and the former, being in advance, was struck and killed by the tender of a locomotive which was being backed. He had crossed three tracks before reaching the one where the accident occurred. Ho evidence was given tending to show that the deceased looked or listened before reaching the tracks, but his wife testified that she looked and listened, but saw no light or car approaching. The court' held that the evidence failed to show want of contributory negligence, an¿ that a refusal to nonsuit the plaintiff was error, saying (p. 425): “ The burden of showing that the plaintiff’s intestate was free from contributory negligence rested upon the plaintiff. It is true that the want of negligence may be established from inferences which may be properly drawn from the surrounding facts and circumstances, as in the. case of Galvin v. Mayor, etc. (112 N. Y. 223). But such inference cannot be drawn from a presumption that a person will exercise care and prudence in regard to his own life and safety, for the reason that human experience is to the effect that persons exposed to danger will frequently forego the ordinary precautions of safety. And when the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a nonsuit should be granted. (Cordell v. N. Y. C. & H. *39R. R. R. Co., 75 N. Y. 330. See, also, Reynolds v. N. Y. C. & H. R. R. R. Co., 58 id. 248; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199; Bond v. Smith, 113 id. 378.) ”
It was held in Ruppert v. Brooklyn Heights R. R. Co. (154 N. Y. 90, 94) as follows: “ In order to prove a fact by circumstances, there should be positive proof of the facts from which the inference or conclusion is to be drawn. The circumstances themselves must be shown and not left to rest in conjecture, and wlien shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from these facts. (People v. Harris, 136 N. Y. 429.) * * * It is a settled principle in the law of negligence which, it has been said, should never be lost sight of, that when the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence, the case should not be submitted to the jury, since, in such a case, the evidence fails to establish the essential fact. (Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 357.) ”
In Tolman v. Syracuse, Bing. & N. Y. R. R. Co. (98 N. Y. 198), in an action for negligence causing death, it was held that the burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff, that while, although there were no eyewitnesses of the accident, and although its precise cause and manner of occurrence are unknown, 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 or tend to establish that the accident might have occurred without negligence on the part of the deceased, yet if the facts and circumstances, coupled with the occurrences of the accident, do not indicate or tend to establish the existence of some cause or occasion therefor which is consistent with proper care and prudence, the inference of negligence is the only one to be drawn, and the defendant is entitled to a nonsuit.
I am brought, therefore, to the conclusion that there was no evidence sufficient to establish that the decedent was free from contributory negligence, and that the judgment should be reversed.
Jenks, J., concurred in result.
Judgment and order affirmed, with costs.