#### Eda Warder Biggers, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Second Department,

May 9, 1913.

Railroad—negligence—intending passenger struck by train while crossing path to station — evidence — contributory negligence — failure to look.

A railroad company arranged its schedule so as to have two passenger trains arrive at its station from opposite directions at the same time. It was customary for patrons of the company to use a path across the tracks to reach the station at which south-bound trains were boarded, and it was the custom of the company to stop its north-bound trains south of the path. In an action to recover for personal injuries, it appeared that the plaintiff and her companion while passing along the path provided by the defendant to reach the station at which south *246bound trains were boarded was struck by a north-bound train which had not been stopped south of the path. Evidence examined, and *held,*that although the defendant was negligent in running its train across the path, the complaint should be dismissed for the failure of the plaintiff to prove freedom from contributory negligence by looking for the approaching train.

Rich, J., dissented.

Appeal by the defendant, The New York Central and Hudson River Railroad 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 6th day of July, 1912, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 12th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*John F. Brennan,*for the appellant.

*Alexander Rosenthal [Walter L. McCorkle*with him on the brief], for the respondent.

Stapleton, J.:

The appeal is from a judgment, entered upon the verdict of a jury, for $1,395.19, and from an order denying the defendant’s motion to set aside the verdict and for a new trial, and from an amended order to the same effect.

The plaintiff recovered damages for personal injuries which the jury attributed to the sole negligence of the defendant. The evidence established the following facts:

Plaintiff, at the time of the casualty, was a young woman twenty years of age. She and a young woman companion, nineteen years of age, intended to board at Bronxville a train bound for New York city and due to arrive at Bronxville at four-nineteen p. M. They had return tickets, which had been purchased from the defendant earlier in the day, at New York city, before their departure for Bronxville. The directions of the railway are northerly and southerly. The south-bound trains run on- the westerly track and the north-bound trains on the easterly track. Pondfield road crosses the tracks and its directions are easterly and westerly. The station is south of Pondfield road. The main station is on the easterly side of the *247tracks, and a small inclosure constitutes the station on the westerly side of the tracks. Between the tracks, for the entire distance of the station, there is an interlacing wire fence about five feet high. The length of the platform on the east side of the station is three hundred and seventy-seven feet, and its width fourteen feet. There is a railroad gate at Fondfield road where that road crosses the railroad. Between the standards or uprights of the gate on the east side of the track the distance is seventy-nine feet. There is a concrete path, leading to the station, on the southerly side of Pondfield road. There is a clump of bushes south of this path and east of the easterly station. The plaintiff was a stranger in the locality, having been at the station only twice before. Her companion was familiar with it, having attended school in Bronxville for a considerable period of time. They came along the concrete path. The train they designed to take was approaching the station. The railroad gates were coming down. There was a well-worn path which intending passengers were accustomed to travel, when the gates were down, to reach the station on the opposite side of the tracks to board the south-bound trains. The course of the path was around the southerly end of the southerly standard of the gate. While crossing the easterly track the plaintiff and her companion were struck by an electric train of the multiple unit type, approaching from the south; the calamity causing the death of the plaintiff’s companion and the injuries for which plaintiff recovered.

The defendant arranged to have two passenger trains arrive from opposite directions. Ordinarily the train from the south was arrested south of the path which was customarily used. A bell in the flagman’s shanty at the north side of the gate was ringing at the time that the young women reached the station. They were crossing hand in hand, walking rather briskly. Plaintiff listened for a train coming from the south.

Plaintiff’s witness Wylie testified that he was a surveyor; that the width of the easterly platform of the station was twelve feet; that the distance from the nearest part of the gate to the nearest rail of the up track was six feet ten inches. Testifying as to the bushes referred to in the case, Wylie said: “ The bushes extend from the point nearest to the rail, back *248along Pondfield Road about 46 feet, that is the first clump of bushes. The second clump, we will say that is about 80 feet back. The nearest point of the bushes is .about 16 feet away from the nearest track, from the nearest rail.”

One of plaintiff’s witnesses said the height of the bushes was nine or ten feet; another said the height was six or seven feet.

The witness Lewis, an engineer, testifying for the defendant, said he made accurate measurements of the *locus in quo*and observations from various points; that 15 feet from the east rail of the north-bound track — that is, after passing the western extremity of the bushes — an unobstructed view of 3,100 feet could be had; that at all points, after the bushes were passed, an unobstructed southerly view of the track could be had of 2,000 feet.

Plaintiff’s testimony in relation to care on her part is as follows: *“*As we neared the station I saw the south-bound train, the one going in to New York, come pulling in, and I made the remark, I said, £Mary, we had better hurry or we will never make that train.’ Her last words to me were *‘*Oh, yes we will ’ and then we walked rather fast, and I remember passing those bushes. * "x" * Miss Powers went right along with me. We were hand in hand; she was a little bit ahead. I was a little afraid; I had been out there twice before. I depended on her.. After she had told me that we had plenty of time, that we could make it all right, after she assured me that we would make the train, I ceased to worry. Then I started to go for the train on the other track. I don’t remember anything else until I woke up in ‘the hospital. * * * I heard the bell on the train going to New York. No other bell. No whistle.” On cross-examination she said: £ When I came down on that platform my eyes were looking at the train going to New York. I didn’t have time to look for the approach of the train coming up. I couldn’t see for the bushes. I couldn’t see any train. . * * * In watching my train going to New York I glanced on the track and did not see any. * * * I did not look for a train coming from New York City. I didn’t look for one. I wasn’t expecting one. I made the glance. Just as I was watching the southbound train, the train going to New York, pull in the station. *249* * * Q. Then from the time you were out on the road until the time you walked out on the platform and across the tracks, you didn’t look for a train from New York ? A. No, I was looking for my train going to New York. I did hurry; we were walking rather briskly.” She further said: “I listened but I did not hear. When I listened it was right before you get to the bushes. I wasn’t listening for a train from New York City. * * * As I reached the end of the concrete walk and as I turned to the left I looked for the approach of the train. I did not see any. The concrete walk carries me out as far as the beginning of the border of the platform itself, that is the extreme east side of the platform. * * * Q. Had you stepped off the concrete going toward the track at the time you looked down for the approach of the locomotive or cars, whatever they might be, had you stepped from the concrete, that is, reached the end of the concreting and stepped off to go south or southwest to reach the end of the gate at the time you looked for the approach of a car or cars or anything ? A. I think I stepped off. I had gone off the concreting nearest the track at the time I say I looked for the approach of a car or something. Q. And about how much nearer to the track at that time were you than the end of the concrete, your rough judgment, had you gone one step ? A. I saw one or two steps. At that time I neither saw or heard any train. The reason that I listened and the reason I looked was in order to be safe, in going across the track.” On redirect examination she testified: “Q. Miss Biggers, in answer to the questions of Mr. Brennan I understand you to say that you stopped on the Pond-field Boad before you reached the concrete walk and listened ? A. I didn’t stop still, I listened. I had been there at that station twice before. In my direct testimony I said I recalled nothing after I left the bushes. At the time I left the bushes and after I left I was looking at the train going to New York, the south-bound train. In so doing I glanced down the track. I saw or heard no train. They creep on you so quickly you can’t hear.”

Contemplating the location of the station at Bronxville, considering the arrangement by the defendant of its schedule whereby it designed to have two passenger trains arrive from *250opposite directions at the same point at precisely the same moment, and having in mind the custom of the patrons of the defendant, coming from the east, to use the path across the track to reach the station at which south-bound trains were boarded, and the custom of the "defendant to stop its northbound trains south of the path, defendant was negligent in running its train across the line of movement of persons intending to take passage on its south-bound train.

Unless the plaintiff could exclusively rely for her safety upon the faculties of her companion there is no probative evidence of her freedom from contributory negligence. We know of no authority which absolves a pedestrian from the exercise of some care. In this case there was no custom, with which plaintiff was familiar, upon which she was warranted in relying; there was no express invitation, with its implied assurance of safety, upon which she was justified in presuming; there was no credible evidence that she exercised her sense of sight. It was established to the point of demonstration that there was a reasonable zone of safety from which she had an unobstructed view, for a long distance, of the track upon which the train which struck her was moving. If she had looked she could have seen its approach and avoided the collision. A statement that she looked and could not see is incredible. The failure to look is fatal to her recovery. *(Cranch*v. *Brooklyn Heights R. R. Co.,*186 N. Y. 310; *Dolfini*v. *Erie R. R. Co.,*118 id. 1, 4.)

The plaintiff, to maintain her proposition that the question of contributory negligence in this case was for the jury, cites the following cases: *Beecher*v. *Long Island R. R. Co.*(161 N. Y. 222); *Palmer*v. *N. Y. C. & H. R. R. R. Co.*(112 id. 234); *Parsons*v. *N. Y. C. & H. R. R. R. Co.*(113 id. 355); *Terry*v. *Jewett*(18 id. 338); *Brassell*v. *N. Y. C. & H. R. R. R. Co.*(84 id. 241); *Oldenburg*v. *N. Y. C. & H. R. R. R. Co.*(124 id. 414).

It is unnecessary to discuss those cases in this opinion, as all of them, except *Oldenburg*v. *N. Y. C. & H. R. R. R. Co. (supra),*were considered by the Court of Appeals in *Cranch*v. *Brooklyn Heights R. R. Co. (supra),*and the court, as a result of its examination of them, said: *“*In all of those cases *251there were circumstances from which it was reasonable to draw the inference, either that such care had been exercised as was required in the circumstances, or that the necessity for such care had been obviated by conditions well calculated to lull a reasonably prudent person into a sense of security.”

In the case of *Oldenburg*v. *N. Y. C. & H. R. R. R. Co.*the person whose conduct was under examination was a pedestrian crossing a railroad where it was intersected by a city street. He was unfamiliar with the locality. The north safety gate, which was down as he approached, was raised and he passed over some of the tracks in safety. There were obstructions which obscured his view, and while the pedestrian was on the tracks the gateman had begun to lower the south gate. This combination of circumstances suggests the propriety of sending that case to the jury as a question of fact upon the issue of contributory negligence, but affords no basis for the plaintiff’s contention that the case is an authority favorable to her case.

The judgment and order should be reversed, with costs, and final judgment directed dismissing plaintiff’s complaint for failure to prove freedom from contributory negligence.

Jenks, P. J., Thomas and Carr, JJ., concurred; Rich, J., dissented.

Judgment and order reversed, with costs, and final judgment directed dismissing plaintiff’s complaint for failure to prove freedom from contributory negligence.