#### STOPP v. FITCHBURG R. CO.

(Supreme Court, General Term, Third Department.

July 14, 1894.)

'Railroad Companies—Accidents at Crossing.

Where plaintiff, at any time after reaching a point 50 feet from the crossing, could have seen the locomotive by which she was injured at the distance of 1,000 feet, if she had looked, a nonsuit should be granted, though plaintiff testifies that she stopped before going on the track, looked and listened, and continued to look until she went on the track.

Appeal from circuit court, Rensselaer county.

Action by Elizabeth Stopp against the Fitchburg Railroad Company. There was a judgment in favor of plaintiff, and defendant .appeals.

Reversed.

Argued before MATHAM, P. J., and PUTNAM and HERRICK, JJ.

T. F. Hamilton, for appellant.

James C. Fursman, for respondent.

HERRICK, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $525.84, damages and costs. In October, 1892, the plaintiff, while driving across the tracks of the defendant, was struck by one of defendant’s trains, and thrown from the buggy in which she was riding, and sustained injuries for which she brought this action. At the time in question she was driving in an uncovered buggy with her mother. She had a single horse. The horse was gentle, easily managed, not afraid of the cars, responsive to the whip and lines, who stopped readily when spoken to, and the plaintiff had full control over him at the time in question. The highway where the accident happened is crossed by two tracks belonging to the defendant. They are about 260 feet apart. As :she approached the crossing, and while at some distance therefrom, *1009she observed two freight trains upon the track furthest from her. Upon observing them, she stopped her horse. At or near the place where she stopped there are two houses situated on the highway,— one distant about 170 feet, from the first track, and the other about 250 feet. She says:

> “Before we came to these tracks, we stopped, and we saw two freight trains, ■one after the other, on the lower track, going by, and we stopped until these went by, and everything was all clear, as far as we could see, and then we listened for a minute or two,—I do not know quite so long, but then listened long enough to hear for noise and to see if any trains were coming. I looked both ways to see if any trains were coming, and I know no more until we went oh, and got struck with the train. There was no warning or sound given, no bell rung or whistle blown. The carriage and horse both stopped. We were waiting to see if there was any danger. We stopped for the trains to go by, and then we looked both ways and listened, and then went on, and were struck by this train. It was about quarter to nine in the morning. I looked both ways, up and down, to see if any more trains were coming, and did not see any more, so went on; then not knowing any more until we were struck by the cars.”

She was familiar with the crossing, and had crossed there a great many times. She says:

> “I think we stopped by the second house from the track, or near there. I could not say right in front of it nor near there. I don’t know whether a little past. I could not say just how far from the track. I should say about three hundred feet from the track. It is my best recollection now that we stopped before ■ we got to the last house. We did not stop from that time until the accident happened. Horse was going slow, and on a slow walk. I had full control over the horse. When I stopped there were two trains on the lower track. After they passed, I looked ahead. I looked both ways on this other track,—up and down on the first track we had to cross. I could not see anything from that point on account of the lay of the land,—the physical barrier. I could see down the west-bound track, and I could see those trains going by. My mind was on the first track we were crossing, because I knew we were in danger. When I stopped near the house, I could not see up the west-bound track at all. I could not see anything but the track road ahead of me. The first track— I could not see that. I could see the other track—the east-bound track—plainly with those freight trains coming east. Then I started on a walk. By the Court: Q. Which way did you look? A. Up and down. Q. After you started? A. Yes. sir. <3- While you approached this track? A. Yes, sir. I did not hear any warning. There was no warning given me.”

There is a whistling post on the west-bound track (this is the . track where the accident happened) 1,300 feet from the crossing. Sitting in a buggy 25 feet from the crossing the tracks can be seen for a distance of 1,100 feet towards the whistling post; 38 feet away, it can be seen 1,100 feet. Fifty feet away the tracks can be seen for a distance of 1,300 feet. At a distance of 100 feet from the track it can be seen for a distance of 180 feet. Standing on the crossing, the track is clear to the eyesight to the whistling post, and standing 20 feet distant from the track the whistling post can be seen. The train by which the plaintiff was struck was a passenger train, going at the rate of about 40 miles an hour.

As to the facts herein stated there was no controversy upon the trial. The defendant moved for a nonsuit at the close of the plaintiff’s case, which was denied; and again at the close of all the evidence in the case, upon the ground that no negligence was shown on the part of the defendant, and that there was no evidence of *1010the absence of contributory negligence on the part of the plaintiff; which was also denied. I think the court erred in overruling the defendant’s motion for a nonsuit at the close of all the evidence. To maintain her cause of action it is necessary for her to establish the absence of contributory negligence by affirmative evidence. It is an issue in the case where the burden of proof rests upon the plaintiff. In the case of Bomboy v. Railroad Co., 47 Hun, 425, the plaintiff there testifies that he had been looking for the train, but did not see any; that when he got near the railroad he looked up and down, but did not see any train. He testifies that he looked up and down the track when he was distant about 20 feet, and again when about 15 feet, and still again when about 10 feet, but saw no train. His horses were upon a walk. The evidence further shows that at 26 feet distant therefrom he could see down the track a locomotive, 320 feet, and could have a full view of an approaching train if he had looked over his left shoulder; and at the rate of speed at which he was going be would take between four and five seconds to go 26 feet; and there was no object in view to distract his attention. Notwithstanding his testimony, the court stated: “It is highly probable that he had not looked during that space of twenty-six feet, but, if he had, he must have seen the train.” It is important to> notice that, according to his testimony, his horses barely stepped one or two feet upon the track, and had stopped of their own accord, and that then for the first time he saw the locomotive just upon him. The court further says: “We must hold that the plaintiff was not free from contributory negligence. He had ample control of his team and of his own actions, was not off his guard, or distracted by any act of the defendant, could easily look, had ample time to do it, but heedlessly exposed himself and property to injury.” In this case, when at the distance of 25 feet from the crossing, the plaintiff had a clear view of the track for 1,100 feet, while in the Bomboy Case, at 26 feet from the track, only a view of 320 feet could be obtained. At 50 feet away the smokestack of the engine could be seen a distance of 1,300 feet from the point where she was struck by the locomotive. As was stated by the court in the Bomboy Case, she had ample control of her team and of her own actions, and she was not off her guard, nor distracted by any act of the defendant, and could have easily looked, had. ample time to do it, and, if she had looked during that time, she must have seen the train; and in the language of Woodard v. Railroad Co., 106 N. Y. 369-374, 13 N. E. 424, she had only to look and pause and be safe, at any time when within 50 feet of the defendant’s track. See, also, Tucker v. Railroad Co., 124 N. Y. 308, 26 N. E. 916. Daniels v. Transit Co., 125 N. Y. 407, 26 N. E. 466. It being undisputable that she could have seen the train for over 1,000 feet at any time after she reached a point 50 feet distant from the track if she had looked, I think it must be held, in view of the cases I have referred to, that she did not look, excepting straight in front of her, but went heedlessly on. If she had looked, she would have seen the locomotive, and have had ample time to stop and be safe. If she did not do so, it was negligence.

*1011If she did not look, it was negligence. For the error, therefore, in denying the motion for a nonsuit, the judgment should be reversed, and a new trial granted; costs to abide the event. All concur.