The evidence in this case indicates to my mind not merely a failure to show that absence of freedom from contributory negligence which is necessary to be shown upon the behalf of the plaintiff in order to sustain a recovery for negligence upon the part of a railroad company, but clearly and beyond any question the actual existence of negligence of the driver *293and of the plaintiff which contributed to the plaintiff’s injury. The excuse attempted to be set up for such conduct, that the top of the buggy and the snow and wind rendered it more difficult to hear the noise of an approaching train, seems to prove and emphasize their carelessness and want of attention in making an effort under those circumstances to learn there was no train approaching the crossing. They well knew of this condition of things, and of the location and surroundings- of the crossing, and that they were called upon to use more than ordinary prudence in effecting the crossing under such circumstances.
The general rule in this class of eases is that the burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff or, in the language of the opinion in Tolnam, v. S. B. & N. Y. R. R. Co. (98 N. Y. 202), that “plaintiff approached the crossing where the collision and injury occurred with prudence and care, and with senses alert to the possibility of approaching danger.”
And this rule obtains even where the railroad company neglects to ring its bell or sound its whistle as required when its trains approach a crossing. (Cullen v. D, & H. C. Co., 113 N. Y. 668.)
Bor do I think that this rule is to be relaxed in favor of the plaintiff because of the fact that he -was being carried in a vehicle owned and driven by another. The rule that the driver’s negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not exist, or where the passenger is seated away from the driver or is separated from the driver by an enclosure and is without opportunity to discover danger and to inform the driver of it. (Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 11.)
It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable.
The plaintiff was sitting upon the seat with the driver, with the- same knowledge of the road, the crossing and environ*294ments, and with at least the same, if not better, opportunity of discovering dangers that the driver possessed, and without any embarassment in communicating them to him.
The rule in such case is laid down in Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199), where husband and wife were sitting upon the same seat in a vehicle driven by the husband, and both were killed by a collision at a crossing, and in an action brought by the administratrix of the wife against the railroad company it was held “ that she had no right, because her husband was driving, to omit some reasonable and prudent effort to see for herself that the crossing was safe.” “ She was bound to look and listen.”
The judgment should be affirmed, with costs.
All concur except Follett, Ch. J., not sitting, and' Bradley, J., not voting.
Judgment affirmed.