The only question which need be considered upon this appeal is : Was there any evidence, which tended to prove that plaintiff’s intestate was free from contributory negligence %
The facts bearing upon this issue are few and simple. The ■deceased was familiar with the highway leading across the defendant’s tracks where the accident occurred. He knew the location of *283every permanent structure upon either side, which could prevent a traveler upon the highway from seeing an approaching train. He was also familiar, in a general way at least, with the manner in which the defendant’s trains were operated at the place in question. He knew the location of the switch tracks and of all the railroad appliances located north of defendant’s freight depot and of track No. 5, which is the first track south of the freight depot. On the night in question he knew, if he looked, precisely how such tracks were occupied and what engines and cars were upon them.
As the deceased proceeded along the highway to track No. 5 he knew, if he listened, that a train was approaching from the east, because its bell was rung continuously and the whistle was sounded at the whistling post. Indeed, it is not claimed that the defendant was in any manner negligent in the operation of that train. After the deceased crossed track No. 5, which is located just south of the freight depot and on which a train of cars without an engine was standing, if he looked he saw the freight train, the bell of which was ringing, and the whistle of which had sounded, approaching the highway from the east on track No. 3, and that it was approaching at the rate of ten or twelve miles an hour. When at this point and just as. he crossed track No. 5 the deceased also knew, if he looked, that a passenger train was approaching from the east on track No. 2, because the evidence clearly establishes that from that point such passenger train was in full view. So far as is disclosed by the evidence, the deceased, without giving any attention to the other tracks, without making any observation to ascertain whether or not a train was approaching on track No. 2, which is next south of track No. 3 upon which the freight train was approaching, drove on in advance of the freight train and attempted to pass in front of the passenger train, when he was struck and the accident resulted.
When the deceased was at the point on the highway just south of track No. 5 he saw and heard, or could have seen and heard, the freight train approaching on track No. 3, and had an unobstructed view of the approaching passenger train. Apparently he then made up his mind that he could cross in advance of the freight train, and drove on without looking or listening or taking any precautions to ascertain whether or not there were any other trains approaching on tracks Nos. 1 and 2, or to guard against a collision *284with such trains. At all events there is. no probf that the deceased exercised any care whatever. Under those circumstances, I think the deceased was chargeable with contributory negligence as matter of law.
In Heaney v. Long Island Railroad Co. (112 N. Y. 122) the deceased started to cross the defendant’s tracks about six o’clock in the morning. The morning was cloudy and rainy. A train had just passed on the south track, which was nearest to the deceased, and the smoke from its engine settled down upon the road behind it sufficiently to temporarily obscure objects in the line of vision The deceased, however, went ahead without looking to ascertain whether or not a train was approaching on the other track, and as he stepped upon the north track he was struck by a west-bound train and killed. It was held that the deceased was guilty of contributory negligence as matter of law.
In Daniels v. Staten Island Rapid Transit Co. (125 N. Y. 401) the deceased was familiar with the locality, and knew that there were two railroad tracks upon which trains passed in opposite directions. A train was passing on the south track. After it passed the deceased crossed the, south track and when he had done so, if he had looked, he could have seen a train approaching, on the north track. He, however, proceeded to cross the north track without looking, and was struck and killed. It was held that the deceased was guilty of contributory negligence, as matter of law, and that no recovery could be had.
Many cases might be cited in support of the proposition that a traveler who, in attempting to cross a double-track railroad, crosses in front of a train approaching on the track next to him, or behind such train after it has passed, and then proceeds to cross the other track without looking or listening to ascertain whether or not it is safe to do so, and sustains injury, is guilty of contributory negligence Which will prevent a recovery for the injuries sustained, where it does not appear that he could not have seen or heard the train with which he came in collision if he had taken such precautions.
But it is suggested that in the case at bar when the deceased was on track No. 5 or when he had crossed such track, and saw or could have seen the approaching freight train and also the passenger train *285which struck him, he was in a place of danger; that it would then have been unsafe for him to stop; that he could not have turned back, and, therefore, was justified in attempting to cross ahead of the two approaching trains, and that under such circumstances proof of the exercise of care and prudence on the part of the deceased may be dispensed with. In the first place, there is no evidence that the deceased considered the place between tracks Nos. 5 and 4 dangerous; as a matter of fact, no engine or car upon those tracks, or upon the tracks north of the freight house was moving or did move until after the accident. There is no evidence tending to show that the deceased tried to stop or turn around before attempting to cross in front of the approaching trains, or that he did any other act or thing except to go forward in advance of one train and directly in front of the other, with which he collided.
If the place between tracks Nos. 5 and 4 was a dangerous place, that fact was known to the deceased. He knew that until he reached that point he could not see a train approaching from the east, and he knew that a train was approaching, for he heard or ought to have heard its bell and whistle. A traveler upon a highway may not proceed to a place of danger or a railroad crossing and then say: “ I am now in a dangerous place, and so am entitled to race with an approaching train in an attempt to cross ahead of it.”
We think it is not the law that a traveler upon a highway, who is attempting to cross the tracks of a railroad, may voluntarily put himself in a dangerous situation and then be relieved from the necessity of taking any precautions to avoid collision with a train passing such crossing.
In the case at bar there is not a particle of evidence to indicate that the deceased did a single thing, exercised the slightest care, after reaching track No. 5 or at any other time, to avoid the accident. The whole evidence bearing upon that branch of the case may be summed up by saying: The deceased and his two companions were in a cutter drawn by a horse which sometimes was afraid of engines. He started to drive upon the highway in question across the tracks of defendant’s railroad. Before he reached track No. 5 he heard the bell ringing on a train approaching the highway from the east, and heard the sound of the whistle. He proceeded to a point between tracks Nos. 4 and 5, and then, if he *286looked, lie saw the freight' train approaching which had rung the hell and sounded the whistle. He also saw, if he looked, because it was in full view, the approaching passenger train. He drove on, crossed in safety track No. 3 on which the freight train was approaching, attempted to cross track No. 2 on which the passenger train was approaching, was struck and he and his two companions were killed. No one saw the accident; no witness attempts to say what the deceased did or did not do. It simply appears that at a certain point upon the highway m question he started to drive south that when he reached' track No. 2 lie was struck by a passenger train coming from the east, and was killed.
Before a recovery can be had by a traveler upon a highway, for injuries sustained by coming in collision with a railroad train crossing such highway, it must be shown, either by direct evidence or by circumstances, that such traveler exercised a reasonable degree of care, considering all the circumstances, to avoid such collision. Speculation, pure and simple, will not meet the requirements.
In the case’of Bond v. Smith (113 N. Y. 378), which was an action of negligence, Judge Earl, in writing the opinion for the court, said : “ We have no right to guess that he (the deceased) was free from fault; it was incumbent upon the plaintiff to show it by a preponderance of evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from, fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises.”
In the case of Fejdowski v. D. & H. Canal Co. (168 N. Y. 500) the head note is as follows: “ Where there is no evidence^ express or circumstantial, that plaintiff’s intestate either looked or listened before he attempted to cross a. railroad track, an instruction that the jury might take all the circumstances into consideration and determine whether or, not he did look and listen, and whether or not he could have seen or heard the approaching engine had he done so, is erroneous, since a verdict, in favor of plaintiff may have been based upon the assumption that he. did look and listen, and a judgment entered thereon must be reversed.”
It is quite as reasonable to suppose that the deceased attempted to cross in front of the passenger train which struck him, because *287he thought he could do so before it reached the crossing, but failed for the reason that he miscalculated the distance or the rate of speed, as that he made the attempt because he considered it was dangerous, to stop and remain where he was, or to attempt to turn around. One surmise is quite as reasonable as the other. There is no evidence which tends to support one theory as against the other.
It is suggested in the prevailing opinion that when the deceased started to cross track No. 3 he concluded, and had a right to conclude, that he could cross in advance of the freight train; that his view of the passenger train was then obstructed by the freight train, and as the bell was not being rung on the passenger train, and no warning given of its approach, he had a right to assume that no train was approaching on track No. 2, and, therefore, was not under the necessity of looking or listening, or of taking any other precaution for his safety.
In the first place, there is not a particle of proof to indicate that the deceased could not have seen or heard, or that he did not see or hear the approaching passenger train before he entered upon track No. 3, or that the freight train on that track in any manner interfered with his view of the passenger train at that time. Indeed, an inspection of the maps put in evidence clearly demonstrates that he could have seen such train if he had looked. But even if the freight train obstructed the view of the passenger train, I understand the duty still rested upon the deceased to make some investigation ta ascertain whether or not it was safe to cross the track in front of the passenger train; that even under such circumstances he was called upon to exercise such care and caution as under all the circumstances was reasonable, and that in an action brought to recover for the death of the deceased it is essential that proof should be made that such degree of care and caution had been exercised by the deceased. He must look and listen even under such circumstances, unless proof is made that it would have been “utterly useless ” to have done so.
We think the case of Wieland v. Delaware & Hudson Canal Co. (167 N. Y. 19), recently decided by the Court of Appeals, is decisive of the question under consideration. That was a railroad crossing case, and the train which struck the deceased was going at the rate of fifty or sixty miles an hour, giving no warning of its *288approach. At a point on the highway 30 feet north of the railroad track a better view could be obtained of the track than at any other point, but from that point it was only visible for a distance of from 150 to 200 feet,, and the situation was such that an approaching train could not be heard until it came.with 150 or 200 feet of the crossing. After leaving the point in the highway 30 feet distant from the crossing the view of the railroad track was considerably shortened until the crossing was reached. Under those circumstances the plaintiffs intestate in that case attempted to cross and was struck and killed by the approaching train. In discussing the question of the contributory negligence of the deceased, the court said : “ He (the deceased) was bound to exercise reasonable care for his self-preservation; that is, he was bound to exercise that degree of care which a reasonably prudent man would use. * * * He was required to look and listen. Nothing could excuse the absence of this degree of care, or justify the lack of evidence tending to show that it was exercised, except proof that under the conditions which existed it would have been unavailing. Did the decedent either look or listen before he went upon this railroad track ? We can find no answer to this question in the record. As we have stated, there is not a single fact or circumstance in the evidence which sheds any light upon the decedent’s movements between the time when he was seen a quarter of a mile north of the railroad track and the instant when he met his death. Could he have heard if he had listened, or could he have seen if he had looked ? The evidence shows affirmatively that neither of these safeguards would have been unavailing. Upon the facts before us it must be assumed that the situation was one in which it was difficult either to hear or see in time to avoid danger. But it was possible to hear and to see, and, therefore, it was the duty of the decedent to use his faculties of sight and hearing in the exercise of such reasonable care as the known danger of the place required. Had the evidence shown or tended to show that either or both of these precautions would have been utterly useless, that branch of the case could have been properly submitted to a jury upon the question whether the decedent had exercised such reasonable care as the exigencies of the situation rendered possible. But when it was once shown that the conditions were such that the decedent, by *289the exercise of his faculties of sight and hearing might have averted the disaster, it became necessary for the plaintiff to go a step further and give some affirmative evidence from which a jury could have found that the decedent was free from contributory negligence. She has failed in this particular. There is neither direct nor circumstantial evidence which points either to the presence or absence of contributory negligence on the part of the decedent, and the case, therefore, falls, within the rule very tersely expressed in Wiwirowski v. L. S. & M. S. Ry. Co. (124 N. Y. 420), and Cordell v. N. Y. C. & H. R. R. R. Co. (75 N. Y. 330), as follows: 'When the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a refusal to nonsuit is error.’ ”
In the case at bar, while we may surmise and speculate, it cannot be said — and there is no evidence tending to support the statement — that it would have been “ utterly useless ” for the deceased to have looked and listened, and, therefore, under the latest decision of the Court of Appeals upon that question, it was essential, in order to entitle the plaintiff to recover, that proof be made that the deceased did look and listen before attempting to cross the track where he met his death.
A traveler upon a highway seeking to cross a railroad track, who . is placed in a dangerous situation immediately before attempting to cross, is not thereby relieved from the duty of exercising ordinary care and prudence, but he must exercise “ such reasonable care as the exigencies of the situation rendered possible.” In the record before ns there is no evidence that such care, or any care, was exercised by the deceased. Such a traveler is bound to “ look and listen,” and it must be proved, not surmised, that he did so, or else it must he proved, not surmised, that to look and listen would have been “ utterly useless.” In this case no such proof was made.
If the rule of law applicable to this case is correctly stated in the prevailing opinion, the fact that a person was killed at a railroad crossing, when there were no eye witnesses to the accident, may be of great advantage to a plaintiff in an action brought to recover damages for such death, because in such case it will only be necessary to prove that the decedent was in a place of peril immediately *290before the accident occurred, a place where it was difficult to see or hear an approaching train, and from that fact alone it will be competent for a jury to find that he was free from contributory negligence. We think the Court of Appeals in the case last cited holds distinctly that even under those circumstances it must be proved that the deceased looked and listened, or else that those precautions would have been utterly unavailing to prevent the accident. There is no such proof in the case at bar.
■ The conclusion of the whole matter is that there was no evidence tending to establish freedom from contributory negligence on the part of plaintiff’s intestate.
It follows that the nonsuit was right, that plaintiff’s exceptions should be overruled, and judgment entered upon the nonsuit in favor of the defendant, with costs.
Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide the event.