(dissenting.) The deceased, a child 12 years of age, was walking near where a rail road crossed the street, and at a place where for over three hundred feet of the sidewalk along which she was going, she had been in full sight of a train backing up as slowly as she was walking. For a few seconds, during this time, a down train passed, on the parallel track, (further from her than the track on which the up train was backing up,) passed very rapidly, and was entirely away from the place of the injury before the injury happened. The deceased, in broad daylight, and with the backing train *157directly before her and in plain sight, stepped on the rail road track directly in front of the car, just as it reached the crossing, and she was run over and killed; a single truck passing over her.
Ebw in this case carelessness—a carelessness so decided and plain that there can be no mistake in so calling it, and a carelessness which not only contributed to, but was the sole cause of the injury'—was plainly proved by the plaintiff’s witnesses. And. where that is proved, there cannot be a recovery.
That, in any given case, the facts being proved, whether those facts constitute carelessness, is a question of law for the court, is too well settled to admit of debate. And that where the facts were clearly proved, a verdict for the plaintiff would be set aside, as against evidence, is as little debatable.
In a case against the Albany pier company for not keeping (as by statute required) a timber along the edge of the dock several inches above the dock’s level, whereby, it was alleged, a team was backed off into the water and lost, it being proved that the teamster Jcnew the state of the dock, and yet backed down to the edge with a load so heavy that his team could not control it, this district general term held the plaintiff could not recover; because the teamster was, as matter of law on those facts, careless.
In Hyatt v. Grant (in this district) a passenger on board of a steamboat was killed by a vessel which came into collision with the steamboat. It was proved that the steamboat could have avoided the collision; and its not doing so, was held careless, as matter of law, and the plaintiff was nonsuited. On review at general term we held the principle of the non-suit clearly right, and that it was not necessary to submit that question to the jury; though we sent back the case, on the ground that the deceased was not careless, or accountable for the carelessness of the steamboat. And we have given other (unreported) decisions to precisely the same purport.
if either these decisions, nor any authoritative decisions in the state, leave this point open to the introduction of the *158question of comparative negligence, as between the two parties ; and they concede carelessness on the part of the defendant. But no repetition of all the circumstances of particular reported cases—so long as they do not meet this rule—can produce any thing but confusion as to the decision of' the case before us.
[Albany General Term, March 5, 1860.Gould, Hogeboom and Peckham, Justices.]
Unless the court are prepared to say that the deceased was not proved to have been at all careless, (in a way that contributed to the injury) it is useless to give details to show that he was not so very careless as Tie might have been; or that the rail road company might have been much more careful than it was; or that a locomotive is a dangerous thing to run against. It is dangerous and Tcnown to be so; and persons should take care not to run against it.
As I understand the opinions, they contain rather plausible excuses for the negligence -of the deceased than any real denial of its proved existence, and they furnish no ground whatever for reversing the decision already given. I am unable to yield my own strong convictions (as to the true rule of the law) to the high regard I have for my brethren and their opinions ; and I feel constrained to dissent from them.
¡New trial granted.