This case was before us upon an appeal from a former judgment. That judgment was reversed upon what we deemed to be an erroneous admission of evidence. It is found reported in 147 Appellate Division, page 349. Plaintiff’s intestate was driving an automobile across the defendant’s track. He was struck by the defendant’s car and killed. The case was submitted to the jury upon the negligence of the defendant in failing to give warning of the approach of the car and upon the contributory negligence of plaintiff’s intestate. Upon these two questions the evidence does not materially differ from that upon the former trial. That there was a question of fact for the jury upon both of these issues would seem undeniable. Upon the question of defendant’s negligence it can hardly be urged that the verdict is against the weight of evidence. Upon the question of the absence of contributory negligence of the plaintiff’s intestate, with some hesitation I am inclined to think that the verdict should be sustained. Two juries have so found. Just before reaching the crossing the plaintiff’s intestate was informed by his wife that the car from the south had already passed, as was the fact with the regular car due at that time . The car which struck the automobile was an extra car. With this information he was naturally put on his guard rather as against a car from the north. The car from the south which struck the automobile could be seen less than 200 feet from a point 14 feet from the crossing. At this point the plaintiff’s intestate slowed down, and according to some evidence stopped. That 200 feet in which the car could be seen from this point would have been passed almost in an instant by the car going from thirty to forty miles an hour, as was shown to have been the speed of this *375car. With the attention of the deceased diverted by being told that the regular car from the south had already passed and with a very short distance at which a car could have been seen approaching even from a point near the crossing, we think the evidence presented as to the care which deceased apparently exercised was sufficient to justify the verdict of the jury. This case is clearly differentiated from those cases where a car could be seen approaching at a sufficient distance so that the traveler upon the highway would be warned in time of the danger of crossing.
The evidence of witnesses that they did not hear the whistle of the approaching car was competent, though weak evidence. If too weak to be competent it was too weak to be harmful. The evidence of plaintiff on direct examination as to the earnings of deceased was of doubtful competency as not the best evidence, but on cross-examination the defendant brought out the same result irrespective of the books upon which the evidence upon direct examination was apparently based. We have examined the record as to other errors claimed to have been committed on the trial but find none which should invalidate the judgment appealed from. The refusal of the trial court to charge the 16th request- to charge, which is made the basis of a dissent herein by my Brother Kellogg, while perhaps not sufficiently answered by the charge as made, was fully justified in view of the physical impossibility of the co-existence of the facts alleged in the request to charge and the happening of the accident. If the automobile were at a standstill ten feet from the track and the car was coming at forty, thirty or twenty miles an hour not thirty feet from the crossing, that automobile never could have gotten onto the track so. as to have been hit by that car. Moreover, with the highway crossing the trolley road at an angle the car would have been squarely in front of the deceased, and if within thirty feet would have been right upon him. Any finding that a man with any intelligence, with his automobile at rest, would have proceeded upon that track with the trolley car right upon him, would be so far against reason as to be without the bounds of credibility. If the automobile could have reached the track ahead of the trolley car, which is physically impossible, it would *376have resulted in certain death, which there is no evidence that the deceased was courting. The judgment and order should be affirmed, with costs.
All concurred, except Kellogg, J., dissenting in memorandum.