It may be conceded in this case that the negligence of the defendant is established, and yet the serious question remains whether the negligence of the grandmother, Theresa Hatch, was not a contributing cause of her own death and that of the infant in question. If it was, as was charged by the trial judge in this case, this action for the death of his intestate cannot be maintained by this plaintiff.
*830It appears from the evidence that at the place where she stopped to Took for an approaching-'train, viz,, from four to six feet north of the first rail of track No. 4, Mrs'. Hatch could’see a train approaching from the east on track No. 3 a distance-of about 2,400 feet; she could from that point also see a train coming from the west on track No. 4 a distance of from 1,200 to 1,400 feet. It seems, .then, that when she stopped to make that observation she was not pre^ vented from seeing by any artificial obstruction; undoubtedly if she looked carefully she would have seen both trains.- It is suggested that smoke from the train coming from the west- ’'Obstructed her View and confused her action, .but I do not discover- any satisfactory evidence in this case that any such smpke did in fact so interfere with her. The clear, weight of evidence is, that the engine from the west was much too far away when the deceased was hit to permit its smoke to have any such effect. As soop as she has taken this observation she starts "to- cross the tracks. She goes safely across track No. 4 and into the space of about seven feet between such track and the north rail of track No. 3 ; then when the engine of the train coming from the east was about ten feet from her, she attempts to step onto such north rail. She is hit by the buffer or beam of such engine, thrown ahead between the rails of the two tracks-Nos.. 3 and 4, and both she and the infant in her arms are killed. . ■
A mere statement of these facts demonstrates very clearly that the negligence of Mrs. Hatch contributed to her own and the infant’s death. We must, believe that when she looked east she saw a train coming upon track. No. 3. It could not then have been very far off, clearly not so far but that it was in plain sight, and no reason appears why she did not see it. And'it would seem that from that moment she started to cross both of such tracks ahead of both the coming trains, and was so intent in getting ahead of the one coming from the east that she never stopped to see how near it had got to the crossing. She misjudged her time, did not take time to give a, second look, and, hence, stepped in front of the engine when it. was in plain sight and almost within reach of her.
When the appeal in 'the action against this same defendant for the death of Mrs. Hatch was before this court,"- we sustained the order of the trial judge, which granted a new trial upon bis minutes, *831on- the ground that the verdict was against the weight of the evidence. The facts as they appear in this record are not substantially different from those that we then acted upon. "We are still of the opinion that Mrs. Hatch’s own negligence was the cause of this accident.
This judgment must be reversed on the law and the facts, and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment.and order reversed and new trial granted, with costs to appellant to abide event. '