It was fairly inferable from the evidence that when the deceased approached the crossing he found it obstructed by the passing train of freight cars, and- that when the last car passed, and a vacant space was presented, that he stepped upon the track without any knowledge or apprehension of the approach of the engine and tender. The facts would have warranted the jury in finding that it was natural and reasonable for him to suppose that when the freight train had passed, and the track uncovered, that it was suitable and sate for him to cross. Being a deaf man he did not hear the approach of the engine and tender, and there being no light upon them to warn him, as the jury might have inferred, he was not made aware of their approach. The running of- this engine, at a rate of speed, beyond the ordinance rate, without any light stationed upon the tender, in a populous city, over numerous crossings, in such close proximity to an advancing train, under the circumstances disclosed by the evidence, was so exceptional and unusual, as to present a fair question as to negligence, for the consideration of a jury.
*72The question as to the defendant’s negligence should have been submitted to the jury, instead of being passed upon as a matter of law. (Massoth v. Del. and Hudson Canal Co., 64 N. Y., 524; Jetter v. N. Y. and Harlem R. R. Co., 2 Keyes, 154; Maginnis v. N. Y. and H. R. R. Co., 52 N. Y., 215.) Was the deceased free from' contributory negligence at the time of the accident ? We must assume that the law requires him to make a vigilant use of his senses to apprehend the situation accurately before determining to venture to cross the tracks.
He did not possess the sense of hearing, and, therefore, could not rely upon any sounds as a means of knowing that it was safe. But he had a right to pass along the street, and to cross the road, using such care as he was capable of.; necessarily, he would be obliged to rely upon his eyesight, to' a greater extent than one having his sense of hearing. He was, therefore, called upon to look up and down the track before venturing upon it. He had seen the freight train pass ; he had seen that there was an unobstructed space left, and if he looked in the direction of the approaching engine and tender, and did not see them, he naturally and prudently might have ventured to pass over the track. The case is without positive evidence upon the subject of whether he looked before stepping upon the track. But there is evidence ten fling to show it was a very dark night; that there was no light upon the backing tender ; that it was passing at the rate of twenty miles per hour, and in the neighborhood of fifty feet behind the advancing train of freight cars.
Necessarily, the witnesses, who state the distance between the freight cars and the engine and tender, give an estimate of the intervening space. It may have been less or more than fifty feet, and yet they guess or estimate as best they can that the distance was about fifty feet. Recognizing the rule that the plaintiff’s case must show by direct evidence, or by such circumstances as justify a fair inference, that the deceased was free from contributory negligence, we think that the case should have been submitted to the jury upon this branch. In the Massoth Case (supra) Judge Allen says : “ It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has by his own acts or neglect contributed to *73the injury, that the court can take the case from the jury, and nonsuit the plaintiff”
The instances in which nonsuits have been sustained, by reason of the contributory negligence of the plaintiff or party sustaining injury, have been exceptional cases in which the court has adjudged that such negligence was conclusively established, by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury. How can we say that the deceased did not look in the direction of the approaching engine and tender, and by reason of the darkness of the night, and the absence of a proper signal or light, fail to apprehend its approach, at the critical moment when ho passed upon the track ? Does the evidence sustain the inference that he acted with ordinary caution and prudence under the circumstances, known and apparent at the moment the freight train had passed the crossing, and he stepped upon the track and was struck by the “ wildcat,” or backing enginfe ?
These, in our judgment, were proper questions for the consideration of the jury. (Gray v. The Grand Trunk R. R. Co., 8 Weekly Dig., 371; Terry v. Jewett, 17 Hun, 395; Eagan v. Tucker, 18 id., 349.) The court erred in refusing to submit the case to the jury and in nonsuiting the plaintiff, and a new trial should be ordered.
The declarations of the deceased, after he was taken to the hospital, as to the manner in which he received the injuries, were not admissible. It is well settled that dying declarations can be Received only on the trial of an indictment for homicide. (Wilson v. Boerem, 15 Johns., 287; People v. Davis, 56 N. Y., 95.) Such evidence is received as an exception to the general rule, that hearsay evidence is not admissible, only upon the principle which protects human life by punishing those who commit homicide. Such crime is often committed when none but the victim and his assailant are present, „and his declarations when in extremis — conscious that he is- about to die — are received to prevent a failure of justice. (1 Greenl. on Evi., § 156, 225, and cases cited [supra] ; not so in a civil case.)
Nor were such declarations receivable as a part of the res gestae. They were made about two hours after the injuries were inflicted, and after the injured party had been removed from the place of *74the injury to the hospital; they were too remote and narrative. (Trimmer v. Trimmer, 13 Hun, 182; Ins. Co. v. Mosley, 8 Wall., 400; Smith v. Webb, 1 Barb., 230; Matteson v. R. R. Co., 35 N. Y., 487.)
A new trial should be ordered, with costs to abide the event.
Talcott, P. J., and Smith, J., concurred.New trial ordered, costs to abide event.