The only question which need be considered is: Did the plaintiff establish by a fair preponderance of evidence that his intestate was free from contributory negligence, or was the finding of the jury that he was, contrary to or against the weight of the evidence ?
The question'of defendant’s negligence was clearly one of fact to be determined by the jury, and no exceptions were taken to the rulings of the learned trial court in the admission or rejection of evidence, to the charge or refusal to charge, which present reversible error.
York street, which is lqcated in a thickly populated section in the western part of the city of Rochester, N. Y, extends north and south, crossing the railroad of the defendant, consisting of four tracks, at an angle of 101 degrees 40 minutes, the obtuse angle being to the northwest. The roadway of the street is twenty-five feet wide, is paved with asphalt to within eight and one-half feet from *345the northerly track, from which point the entire width of the street, sixty-eight feet, is paved in Medina blocks for the entire distance across all the tracks. Immediately south of defendant’s tracks and parallel with them are two tracks of the Buffalo, Rochester and Pittsburg Railway Company. The most northerly of defendant’s tracks is No. 4, the next south is No. 3, the next No. 2, the most southerly No. 1, and all are straight for a long distance upon either side of the street. A flagman’s shanty stands northwest of the crossing, about five and one-half feet north of the north rail of track No. 4, and twenty-seven feet west of the west line of the street, or sixty-two feet west of the center of the traveled portion. There is nothing south of the shanty upon either side of the street to obstruct the view of the tracks. The evidence is uncontradicted that from a point in the middle of the street five and a half feet from the first or No. 4 track, or forty-two feet from track No. 1, the view of track No. 1 to the west is unobstructed for a distance of over sixteen hundred feet. At a point ten feet north of track No. 4, or forty-seven feet from track No, 1, such view extends over eleven hundred feet. Standing fifteen feet from the north or No. 4 track, or fifty-two feet from the north rail of track No. 1, that track is in plain view to the west for three hundred and ninety-four feet, and when fifty-seven feet from track No. 1 it is in plain view for a distance of two hundred and eighty-eight feet.
It is thus seen that a traveler upon York street approaching the crossing from the north has a view of track No. 1 to the west of the street, which for all practical purposes is absolutely unobstructed by any permanent structures or objects. When he reaches a point five and a half feet north of the first track, on a line with the front of the flagman’s shanty, which is forty-two and a half feet from the north rail of track No. 1, all of the tracks upon either side of the street are in plain view for a distance of nearly half a mile and continue to be for the entire distance between that point and track No. 1.
About seven o’clock in the morning of the 10th day of October, 1903, plaintiff’s intestate, then twenty-five years of age, bright, active, and in full possession of all his faculties, approached the crossing in question, with which he was familiar, from the north, riding a bicycle which he was accustomed to use, along the easterly *346side of the street, going at the rate of from five to six miles an hour. When he reached track No. 1, the fourth counting frpm the north, at a point about three feet from the easterly line of the street and of the Medina pavement, he was struck by the engine of a passenger train going east on track No. 1, the regular east-bound passenger track, and injured in such manner that death resulted.
The evidence tends to show that the train was running at the rate of upwards of thirty miles an hour, and that the bell was not rung ' or the whistle sounded. A flagman stood at the crossing facing the south. He had signaled two men who were going north, following each other, driving teams drawing wagons upon which were empty hay racks, both of whom passed in safety. While such rigs were upon the westerly side of the crossing, proceeding north, the deceased was proceeding south on the easterly side, the rigs being between him and the approaching train. They were about twenty-two feet in length over all, and the racks were four and one-half feet in height, with seats in front and boxes over the rear wheels extending a foot higher. Thirty or forty men, employed by the Buffalo, Rochester and Pittsburg Railway Company, were standing about the crossing waiting for a train to take them to their work. As the deceased was going upon the north track the first team was just leaving it. There were no trains, engines or cars approaching the crossing or standing upon the tracks in that vicinity other than the train which struck the deceased, and there was no noise in the vicinity at the time other than what was made by the two teams and wagons and the moving train. When the deceased was approaching the crossing and at a point forty or fifty feet north of the first track, nearly in front of or opposite a house standing on the west side of the street, he was seen to look towards the west and then proceed without slackening his speed. It is apparent that from such observation the deceased could not have obtained any information as to whether or not trains were approaching the crossing from the west unless such trains were practically in front of him. At that point the house and flagman’s shanty prevented a view of the tracks except for a comparatively short distance from the crossing. The deceased took no other precaution, made no other attempt to ascertain whether or not a train was approaching until he reached the point of danger. Indeed, the able counsel for *347the respondent substantially concedes this. He states in his brief: “ To the north of the crossing near the east curb and in front of the house shown in Exhibits 2 and 5 was the deceased upon his bicycle. At about this time he was observed to be looking. The flagman signalled the rigs to come across. Evidently relying upon the same signal, the deceased proceeded toward and onto the crossing. What the (deceased) did from that time on, so far as looking is concerned, does not appear.”
We think those facts do not tend to establish freedom from contributory negligence on the part of the deceased. It is urged, however, that the deceased was relieved from again looking to the west and from attempting to make any further observation, because to do so would have been useless from the fact that the two rigs referred to would have prevented him from seeing the oncoming train. The evidence wholly fails to support that contention. The deceased, who was five feet ten inches in height, was sitting upon his bicycle in the ordinary way; there were no loads upon the wagons and there was considerable space between the hind end of the first wagon and the team drawing the second as they proceeded over the crossing. We might almost take judicial notice of the fact that if the deceased, who was at the easterly line of the street, which was sixty-eight feet wide, had looked over the top of the racks which were upon the westerly side of the street, he could have seen at least the smokestack and top of the engine as it approached. It will be remembered that the racks were only four and one-half feet high, not higher than was the line of vision of the deceased. The evidence establishes that if the deceased, after he passed a point five and one-lialf feet north of the first track, had looked to the west he oould have seen the train approaching and could have avoided coming into collision with it". There is nothing to indicate that the deceased listened nor is any adequate explanation given by the evidence why he should not have heard the rumbling noise of the moving train. It is true the evidence shows that the two teams and wagons were making considerable noise, but it is merest speculation to say that, notwithstanding, the plaintiff could not have heard the train if he had listened. Many, in fact most, of the witnesses called testify that they, did hear it and heard it distinctly. Why the deceased did not hear it and heed it is not explained by the evidence.
*348The plaintiff’s intestate did not look or listen after he passed a point a considerable distance north of the crossing until he reached a point so near to the track on which the train was approaching that he could not avoid coming in collision with it. Under the circumstances we think such failure constituted contributory negligence and such as to prevent a recovery. (McSweeney v. Erie Railroad Co., 93 App. Div. 496.)
Besides, if the situation of the two moving teams and wagons in question was such that they would obstruct the deceased’s view to the west and prevent him from seeing or hearing an approaching train, that fact was apparent to him and he ought, therefore, not to have proceeded without having his wheel under such control that he could have stopped and thus have avoided an accident. He had no right under the law because of the presence of such obstructions to attempt to cross without looking and listening, without exercising some care after he entered upon tire crossing, to ascertain whether or not it was safe for him to proceed.
The cases cited by respondent’s counsel, we think, are not authority for the proposition that the facts disclosed by the evidence in this case, when considered most favorably to the plaintiff, tend to establish that the plaintiff’s intestate was free from contributory negligence.
It is concluded that the plaintiff failed to sustain the burden imposed upon him by law, of proving that his intestate was free from contributory negligence.
It follows that the order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Order reversed and new trial ordered, with costs to the appellant to abide event.