The defendant presents for our consideration, in this case, a single point, to the effect that the plaintiff did not show that he was free from contributory negligence at the time the injuries were received. Our attention is directed to Reynolds v. The N. Y. Central and H. R. R. R. Co. (58 N. Y., 248). In that case the school boy' was killed while crossing a highway by a train of cai’s, and there was no evidence that he looked in the direction from which the train was coming, which struck and killed him. Ten feet from the crossing the engine might have been seen 750 feet.
It was held in that case that “ the proof did not warrant the jury in finding that there was no negligence on the part of the deceased.” This case before us is clearly distinguishable from that one, for the plaintiff has sworn that he did look to the “left” to apprehend, if possible, any approaching train. Besides, there is much better opportunity to ascertain the approach of a train in motion, than the approach of a car suddenly “kicked” along a switch, as in the case before us. So, too, Cordell v. N. Y. C. and H. R. R. R. Co. (6 Hun, 467), differs from the one before us, in-respect to many of the facts attending the crossing. There was no positive evidence as to the acts of the deceased, up to the instant of the accident as in this case, yet it was held upon the evidence in respect to obstructions, and in respect to what the deceased was seen to do just before he was struck, in respect to ascertaining the approach of a train, that it was properly submitted to a jury to find whether, or not, the deceased was free from contributory negligence.
When a railroad company stops its long freight train upon a-street and breaks it in two, so as to leave but a few feet for a traveler along the highway to pass between its standing cars, and he picks his way along as best he can, using his eyesight steadily to apprehend the approach of any other cars from either direction, and receives an injury from a car suddenly “kicked” out and along a track in such a manner as to escape his attention, the court cannot say, as a matter of law, that ho was guilty of contributory negligence. (Massoth v. Del. and Hud. C. Co., 64 N. Y., 530; Haycroft v. Lake Shore and M. S. R. R. Co., id., 636).
The direct proof given by the plaintiff, as a witness, and 'the *35facts and circumstances attending the location of the cars, the situation of the tracks, the extent of the obstructions, were such as to call for inferences which would support the conclusion that the party injured was free from negligence, or establish the Comtrary. (Carr v. N. Y. C. and H. R. R. R. Co., 60 N. Y., 633; Wood v. Village of Andes, 11 Hun, 544.) The case was properly submitted to the jury. The motion for a new trial must be denied and judgment ordered for the plaintiff upon the verdict.
Talcott, P. J. and Smith, J., concurred.New trial denied and judgment ordered for plaintiff on the verdict.