From the evidence which we have before ns, and which was admitted on the trial, it is evident that the questions of the defendant’s negligence and of the contributory negligence of the plaintiff’s intestate were very close, and it is by no means certain that they should be determined against the plaintiff. Thus, it would appear that, in the face of the New Jersey statute, the defendant’s train, which had been behind time at Newburgh, was speeding southward and over this grade crossing without any signal of its approach by whistle or bell, and without a flagman or gate having been provided; that though the road was straight for the distance of about a quarter of a mile north of the crossing, the view in this direction was obstructed by a freight house close beside the tracks and a growth of trees along the tracks and along the north side of the turnpike, the trees extending to within twenty-five feet of the middle of the roadbed, and that the highway was precipitous approaching the railroad, though level at the crossing.
Upon these facts there was sufficient to justify the inference that the defendant was negligent in not sounding a warning or having a flagman or gate at the crossing to apprise travelers of the approaching train; and we cannot conclude, as matter of law, that there was no proof that the deceased was free from negligence which contributed to the accident. Upon this latter question it might very well be that the plaintiff’s intestate, who was described as a man “ attentive and alert ” in character, arrived at the tracks without any intimation of danger, and, suddenly discovering the train close upon him, was unable with reasonable care to avoid the collision. Suddenly confronted by a rapidly approaching train he was compelled in the management of his horse to act hurriedly, and, under such circumstances, a mistake of judgment is never conclusive proof of negligence. It is true that the testimony ,is scant, there being no eye-witness, but from the position of the wagon and the horse after the accident it is fair to infer that he had, when struck by the train, _miost reached a place of safety. This much we are able to conclude from the testimony before us, and though some evidence bearing upon the questions of negligence was thus admitted, what the appellant, justly complains of is that all the evidence offered upon these matters was not allowed. Thus, while inquiries directed *272to some witnesses as to the character of the highway, the precautions taken to warn travelers, the position of the wagon and of the injured man at the time of the accident, were admitted, similar evidence which was intended to amplify and more fully explain these same incidents was excluded. .
The principle which is here applicable is thus referred to in Pruey v. N. Y. C. & H. R. R. R. Co. (41 App. Div. 158): “In a case where death ensues as a result of a collision of this kind, and where there is no eye-witness of the occurrence, there is a relaxation of the rule requiring strict proof that the decedent was vigilant and observant as he advanced toward the track. The regulation exists in its integrity, but the proofs presented may be inferential, may be dependent upon circumstances, and still be adequate to satisfy the court of the absence of contributory negligence. As was said in Noble v. The New York Central & Hudson River Railroad Co. (20 App. Div. 42): ‘ In actions to recover damages for negligence resulting in death where there are no eye-witnesses of the accident, the freedom of the deceased from contributory negligence may be established by proof of facts and circumstances from which it may fairly be inferred that the deceased was not at fault.’ ” ' Thus in Wieland v. Delaware & Hudson Canal Co. (30 App. Div. 85), where an accident similar to this occurred and where as here, the horse escaped injury, a recovery was allowed. " .
Whether the circumstances and conditions shown by the evidence admitted to exist were such as would warrant a recovery here, however, it is unnecessary for us to determine, for the reason that we think error was committed in the exclusion of considerable evidence tending to show the exact situation at the place and at the time of the accident. Were such evidence admitted the plaintiff might have been able to make out a prima facie case. Thus, upon the question of defendant’s negligence, it was proper as bearing upon the degree of care which the defendant should exercise, to show the general character of the highway, the safeguards, if any, provided to avert accidents; and upon the question of contributory negligence it was competent to show, in addition to the difficulty of perceiving danger, all the circumstances which would bear upon the manner in which the accident happened, and everything relating to the highway as a thoroughfare, the extent of travel upon it, and *273whether at that point many persons were obliged at all times of the day to cross, from all of which the inference might be drawn that the intestate would not reasonably anticipate that a train would approach without warning at a high rate of speed. In the case of Judson v. Centred Vermont R. R. Co. (158 N. Y. 597), wherein it was held (head note) that “ a person approaching a railroad crossing is not bound to exercise the greatest diligence, but only such as a prudent man approaching such a place would ordinarily exercise under the circumstances,” the rule was pointed out that what a person desiring to cross a railroad track must do in a given case to relieve himself from the charge of negligence is for the jury to decide, in view of the circumstances developed.
Aside from these questions of negligence, our attention is called by the appellant to the exclusion of evidence bearing upon the allegation of the complaint that the defendant inhumanly treated the injured man after the accidént, by conveying him in its baggage car without medical attendance from Teaneck to Weehawken, where he died. This objection is met on the part of the defendant by showing that, although the complaint contained the allegation referred to,, it was also alleged therein that the death of the plaintiff’s intestate was caused, by the collision itself. Further, the defendant avers that, for such personal injuries, if any, recovery was impossible after death. In regard to these questions we think that no comment is necessary, in view of the conclusion at which we have arrived, that error was committed in excluding evidence offered upon the defendant’s negligence and the freedom of the deceased from contributory negligence.
We think, therefore, that the judgment should be reversed for the reasons stated and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.