I agree with Mr. Justice Ingraham in his conclusion that upon the evidence the question of defendant’s negligence was one for the jury; but I dissent from his further conclusion that from the evidence the deceased was, as matter of law, guilty of contributory negligence, thinking as I do that this question also was one for the-jury-
These facts so far as given in the opinion are correctly stated ; but there is one feature which is not given sufficient prominence . and which, I think, is important as bearing upon the question of contributory negligence. The cases relied upon in the prevailing opinion are those having relation to a steam railroad upon which trains regularly run and in approaching which an active duty of care devolves upon one attempting to cross the tracks. The place where this accident occurred was within the city limits- and in the heart of a populous district and where trains did not. .regularly run. There was but a, single track, constituting a switch or connecting line or siding, which was occasionally used in moving cars loaded and unloaded at irregular intervals to and from Port Morris to the main line. The train which struck the man consisted of but three cars with the engine running backwards and was on its way to the freight yard at Melrose. The accident occurred at a crossing much frequented by the public where Eagle avenue joins One Hundred and Forty-ninth street, the track lying in One Hundred and Forty-ninth street and intersecting it diagonally. So little was the track used that it was thought unnecessary to keep stationed at that place a flagman or provide a gate or sign post, as it would certainly be the duty of the railroad to do if the track had been in frequent use for the passage of trains. One familiar with these conditions as the deceased was, according to the testimony, had no such active duty imposed upon him as would have been the case were lie approaching and attempting to cross the main tracks of a railroad. On the contrary, it seems to me, he had the right to assume that at *409such occasional times as this track was used and it was attempted to-round the curve through the cut which opened into the street and avenue at this point, those in charge of the train would give some warning of its approach. That no such course was followed' appears from the prevailing opinion; and in the absence of any-warning or notice I do not think it can be said, as a matter,of law, that the deceased, having no reason to apprehend that at that time-a train would be likely to approach, was guilty of contributory negligence in attempting to cross.
The plaintiff, moreover, did not have the benefit of the testimony of the deceased as to just what care he observed in coming upon the track. As said in Schafer v. Mayor (154 N. Y. 472): “ If he had survived the accident it would have been necessary for him in order to meet the burden of proof, to state what he did and what he tried to do, fully and explicitly; but as he is dead, less evidence is required of his personal representative. * * * The plaintiff’s intestate was bound to exercise reasonable care; but if, owing to the circumstances, the evidence of care was weak, it does not follow that it was not for the consideration of the jury. If there was any evidence upon the subject, the case should have been submitted to them for decision.” And in Rodrian v. N. Y., N. H. & H. R. R. Co. (125 N. Y. 529) it was said : “In case of a death accident at a railroad crossing, it must often happen that the circumstances immediately preceding it and the acts and conduct of the deceased are left in great obscurity. But the rules of law governing the right of recovery are the same as in other cases, although slighter1 evidence of compliance with the duty cast upon a plaintiff might be deemed sufficient than where the injured person was alive and competent to testify.”
It is true that in the case at bar there was an eye-witness, and, therefore, what has been said in many cases as to the relaxation of the rule requiring strict proof that the deceased was vigilant and observant as he approached the track is not entirely applicable; but the testimony of Monaghan, it seems to me, is not to be considered and read as though he saw or knew everything done by the plaintiff’s husband before attempting to cross. He states merely what he did observe, and even from that evidence it appears that he saw the deceased standing, before starting to cross, *410on the westerly side of Eagle avenue and near the corner of the One Hundred and Forty-ninth street crossing; that he “ looked •apparently up the track in the direction of where the train comes out. * * * He turned and looked that way (southeast) and then he started to walk down towards the track, on the north- side of 149th street. * * * I did not see him until the locomotive came right out of the cut and hit him and threw him on the opposite track and cut him right in half.” And Monaghan further says :
“ The cars * * * came right out all of a sudden. Out of this -cut * * * the whistle was not blown * * * the bell was not rung * * * I did not know they were coming until they were almost on top of me * * * I looked up the track at the same time. I did not see any train.”
The testimony of this witness, therefore, as to what he noticed with respect to the deceased before he attempted to cross, did not make out a case of contributory negligence as matter of law, because it is evident therefrom that the deceased observed some care and •caution in the way of looking for approaching trains before going to the track and it does not establish that he did not thereafter •observe care. As said in Rodrian v. N. Y., N. H. & H. R. R. Co. (supra) : “ If in case of an accident at a crossing it appears that the person injured did look for an approaching train, it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time when and where looking would have been of the most advantage. Many circumstances might be shown which could properly be considered by the jury in determining whether he exercised due and reasonable care in making his observation.”
Here, according to the testimony, the plaintiff’s intestate, after • looking, attempted to cross without any reason to apprehend that a train was likely to approach; and the train which struck him came swiftly and without warning around a curve and through a cut which, at a comparatively short distance, hid it from him entirely. Hnder such circumstances, the question of contributory negligence should have been presented to the jury. As said in Henavie v. N. Y. C. & H. R. R. R. Co. (166 N. Y. 285), “ If there is any reasonable evidence of care on the part of the plaintiff in an action to recover damages on account of negligence, it is for the considera*411tion of the jury. There was some evidence of care on the part of the deceased, because he looked in both directions when he started across the avenue as well as when he was half way to the nearest track. There was no direct evidence that he listened, and there never can be when the subject of the accident is dead. * * * It appears, however, that he was on the alert and using his eyes, which is some evidence under the circumstances, that he was also using his ears. Moreover the jury could have found that if he had listened he would not have heard the train, for there was no noise and no warning.”
The inference which in this case could fairly be drawn from the evidence is that the deceased did not attempt to cross without taking some precaution, but that he stopped and looked. If at that time, as the jury might infer, there was no train in sight and he proceeded to cross, and thereafter the train, before he had reached a place of safety, rounded the curve and came along the track, traversed the intervening space without having given any warning of its approach and struck him, it cannot, I think, be held that he was guilty of contributory negligence. Under such circumstances, taking the view most favorable for the defendant, it cannot be concluded as matter of law that if after starting to cross he had looked again and seen the train approaching at a rapid rate, he could, in the time, have avoided the accident which resulted in his death. In other words, if the jury had the right to infer, as from the evidence I 'think they had, then when the deceased stopped and looked, he did not see any train and there was none in sight, owing to the contour of the country and the situation of the crossing with reference to the track which crossed it diagonally and came through a cut and around a curve, then they might conclude, particularly as there is evidence that no warning was given of the' approach of the train, that he could not have avoided the accident. As said in Pruey v. N. Y. C. & H. R. R. R. Co. (41 App. Div. 162): “ 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 obli*412gation which would be wholly mechanical. * * * The same principle applies where to listen would be of no practical moment.”
A somewhat similar situation to that here appearing was presented, although from different causes, in the case of Noble v. N. Y. C. & H. R. R. R. Co. (20 App. Div. 43; affd., without opinion, 161 N. Y. 620), where it was said: “ His duty was to look and listen. But to look was of no avail if the car or cars 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.” In that case, as stated in the opinion, “No one saw the accident, but shortly after the train had passed southward Noble was found dead near the track, fifty-six or fifty-seven feet south of the crossing, with his skull fractured and his side completely crushed in. Near him lay a small lantern called a marker, which was subsequently found to belong to the pilot beam of the locomotive.” The court sustained the verdict for the plaintiff and said, after giving authorities, “ In the case last cited it is said that if the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased, a question of fact may arise to "be solved by a jury requiring a choice between possible but diverging inferences. The case at bar seems clearly to fall within the class thus mentioned, and it is easy to find instances in the reports where recoveries have been sustained upon less cogent proof than is here presented as tending to establish the absence of contributory negligence.”
I regard the present case as presenting, for the reasons stated, much stronger evidence in behalf of the plaintiff on this subject than appeared in the Noble Case (supra) and think, therefore, that the question of contributory negligence should have been submitted to the jury, and that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Hatch, J., concurred.
Judgment affirmed, with costs.