#### Hugh F. Gaffney, as Administrator, etc., of Edward Gaffney, Deceased, Respondent, *v.*New York Central And Hudson River Railroad Company, Appellant.

Second Department,

January 10, 1908.

Railroad negligence — death of pedestrian crossing tracks — contributory negligence,

Tlie plaintiff’s intestate-was killed by a slowly moving freight train drawn by an - engine.'running backwards. ■ Evidence examined and *held*to. establish that the decedent, was guilty of contributory negligence and that the verdict was. .contrary to the weight of evidence.

’ Appeal by the defendant, the New York Central and Hudson, Biver'Bailroad Company, from a judgment of- the Supreme Court in favor'of the plaintiff, entered in' the office of the' clerk of the county of Westchester on the 22d day of May, 1907, upon the verdict pf a' jury for $7,50Qpand also from an order éntered in said-clerk’s office on the litljikiay of May, 19(37, denying the defendant’s motion for a new trial made upon the minutes. ■ .

*675
      *John F. Brennan [Charles C. Paulding*with him on the brief], for the appellant.

*Thomas J. O'Neill [Nelson L. Keach*with him on the brief], for the respondent.

Gaynor, J.:

This ease should have been dismissed. The. testimony of the young man who was. out walking with the deceased at the time he was killed is that they were crossing lltli avenue from East to West at the- North .crossing of 54th street in Manhattan borough at about 9 o’clock at night in August; that the deceased walked about ten feet ahead of him; that he saw the deceased looking'both ways for a train ; that he (the witness) also looked and saw the train coming from the South; that it was a heavy freight train (afterwards shown to be of 38 cars, 30 of them loaded) being drawn by an engine running backwards ; that it was going only about as fast as a person walks, 3 or 4 miles an hour —■ and this was corroborated by all of the witnesses on both sides; that he waited for it tó pass; that he saw the deceased continue on and walk in front of it; but did not see him get hit, although .he was looking at him .all. the • while; that he only knew he was hit after the train stopped (as it did immediately in two car lengths or less) and he went to the other side of it. There was an electric street light at the crossing, and other lights in the vicinity in stores, and he liad no difficulty in seeing the train; it was plainly visible and had a light at the head of it, viz., on "the rear of the tender. Another ’ witness, who was on the other side of the street, at the same crossing, testified that he did not see the deceased' crossing, but saw him get hit-as he ' was leaving the track;- lie did not see him until-he saw- him getting hit. He does not say that he was in front of the train, or' what hit him. This is the evidence for the plaintiff on which the. verdict rests. Assuming that it is truthful, the case is plainly one of contributory negligence. Not only was it impossible for the deceased to have' failed to see the train, but the well known noise of a steam engine laboring to pull such a train so slowly, to say nothing of the noise of the cars, must have been heard by him.

' Two witnesses called by the defendant testified that they, saw;--the deceased on ’the top of the first car going toward the rear of the train, *676and in jumping to-the second ear he fell to the ground and was run over. The engineer and fireman testified that he was not hit by the front of the train. The verdict was contrary to the weight of evidence.

The dispute as to whether the bell was ringing, and as to the size of the light on the rear or tender of the engine (it not being disputed that there was a light there), need not be taken into account, for the negligence of the deceased is manifest if the testimony for the plaintiff on these heads was to be given credence. The engine, according to the testimony for the defendant, was one which was run both forward and backward, and had a headlight on both the front and the rear.

The judgment should be reversed.

Woodward, Jenxs, Hooker and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.