On the evening of October 27, 1888, the plaintiff, her husband, and a neighbor named Jacobowski, were going to Riling’s planing-mill, in the city of Buffalo, on Clinton street, on business. They went down Clark street to Fillmore avenue, along that avenue to the space between the West Shore Railroad tracks and the Hew York Central tracks, then westerly along that space to Oneida street, and from that point along the sidewalk on the southerly side of that street across the three tracks of the Hew York Central & Hudson River Railroad Company to the west-bound track of the defendant, upon which the accident occurred. On that track an engine was backing in from East Buffalo towards the city with a tender and caboose. The tender came first, the reversed engine next, and the caboose coupled to the head of the engine last. The rear of the tender struck the plaintiff’s intestate and Jacobowski on the crossing, killing them both instantly. The plaintiff was about three feet behind the men at the time of the accident. On the northerly side of the Central tracks cars were standing from within 20 feet of Oneida street up to near Montgomery street. A passenger train had just passed on the east-bound Central track lying next to the one on which the accident occurred. The rear lights of that train were in sight *362when the engine and caboose which caused the injury came along. It was between 6 and 7 o’clock when the accident happened, and very dark. The testimony on the part of the plaintiff tended to show that the plaintiff and the persons killed went on the sidewalk on Oneida street, along which they walked between the tracks, the two men in front, and the plaintiff three feet behind; that as they approached the track the plaintiff watched for a train passing up or down; that she looked both ways, saw no light or car coming, heard no noise, saw no flagman, heard no one call to them, and did not hear any bell or whistle; that under such circumstances the men stepped upon the defendant’s west-bound track, and were struck by the rear end of the tender, and killed. The plaintiff stood on the sidewalk. The defendant’s evidence tended to show that proper signals were given as the engine and tender approached the crossing; that the persons killed were trespassing on the defendant’s tracks; and that they were warned and urged not to cross by the flagman, but that his warnings were unheeded. The evidence on the part of the plaintiff tended to show the reverse. The plaintiff’s evidence also tended to show that the engine and- tender drawing the caboose were being backed down at the rate of five miles an hour, crossing numerous streets on a dark night without signal lights which could be seen at the crossings, and without warnings that could be heard, also without a flagman to give warning, and that none was given. The evidence also tended to show that there was no head-light to throw light upon the tracks in front of the moving train-to enable those in the cab to see what was on the track; that the tender was broader than the front of the engine, and would partially hide the track in front; that the train was being run in the dark, and those on it were unable to see what they were approaching, and that such was the situation when-the men were killed. The plaintiff, as administratrix of her husband, brought this action to recover damages for his death. It was tried in February, 1890, at the Erie circuit before Justice Daniels and a jury. At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the defendant upon the ground, among others, that there was no proof of want of contributory negligence on the part of the deceased. This was denied. Exception was taken by the defendant. The jury found a verdict of $2,500 for the plaintiff. A motion for a new trial was made and denied, and the defendant appealed to this court.
The only substantial controversy on this appeal is whether the deceased was guilty of contributory negligence, and whether the cause was so barren of proof upon that question as to require that the plaintiff should have beennonsuited, or that a verdict should have been directed in favor of the defendant. In Parsons v. Railroad Co., 113 N. Y. 355-364, 21 N. E. Rep. 145, the rule is thus stated by the judge delivering the opinion: “The question is-whether the injured party, under all the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence-usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” All the more recent cases are to the same effect. Galvin v. Mayor, etc., 112 N. Y. 223, 19 N. E. Rep. 675; Palmer v. Dearing, 93 N. Y. 7; Hourney v. Railroad Co., 7 N. Y. Supp. 602; Beck with v. Railroad Co., Id. 721; Tolman v. Railway Co., 98 N. Y. 203; Cowan v. Railroad Co., 9 N. Y. Supp. 610. The evidence in this case required a submission of this question to the jury. If the plaintiff had received injuries, and she had brought an action to recover damages, it could not be successfully urged, assuming her evidence to be true, that the case should not have been submitted to the jury. While it does not appear what acts of diligence were exercised by the deceased before he stepped upon the track, it does appear what the facts were and the surrounding indications of danger by the testimony of the plaintiff. If the jury found, as they did, that *363her evidence was true, it is fair to assume that her husband, the plaintiff being with him, took the same precautions, and made the same observations that she did. When it appears that observation and looking both ways would have disclosed no danger, it is not too much to assume that the deceased exercised proper caution before going upon the track, and, as he cannot speak upon the subject, it would not be logical, or in-accordance with human nature, to hold that he exercised less caution than his wife, or that he exposed himself to danger without proper precaution. If there had not been any evidence that looking and observing would have disclosed no danger when in fact there was, it could be urged with great force that there was want of affirmative proof of proper diligence; but when it affirmatively appears that diligent observation disclosed no danger, it cannot be urged with any cogency that the person killed neglected proper precautions. Under all the circumstances it satisfactorily appears that the learned trial justice was right in refusing to nonsuit the plaintiff, and directing a verdict for the defendant; also in denying the defendant’s motion for a new trial. The judgment and order must be affirmed.
Macohber, J., concurs.