Hardin, P. J. :
On the night that jilaintiff received the injuries complained of she had been visiting at the house of Mrs. Melville on the east side of Childs street, south of the defendant’s tracks, and she started to go northerly on the easterly side of Childs street in company with Mr. Smith. Before reaching the Central tracks she was required to cross a switch of the Buffalo, Rochester and Pittsburg road, and she testifies that, after passing the main track of that road, as she was approaching the Central, she stood long enough to look up and down the tracks before she advanced, and as she approached the tracks of the defendant’s road she discovered there was a freight train approaching from the west, and that the engine of that train was emitting large clouds of smoke, and that she stopped and waited for the freight train to pass the Childs street crossing. She testifies, viz.: “ I looked on the Central tracks and noticed there was smoke coming from the freight engine, covering the Central tracks. I think the ■ freight engine at that time was very near to or had crossed York street to the east, and the smoke from the engine was falling down over the track, covering the tracks, falling to the ground; it extended up as high as the freight cars. * * "" When I last looked to the east I was just about to leave track 2, or had just left it. Did not stop to look, simply slackened. When I last looked east 1 saw a big bank of smoke coming from the freight train, so dense that I could not see through it on track 2; it was as high up as the cars, and covered the Central tracks east of the crossing. As I looked east at that time the smoke obscured the view of No. 2 Central track, hut did not obstruct the view to the east of the other tracks south ; not so dense but that I could have seen any trains coming on those south tracks. The farther south you got the less dense the [454] smoke was. * * • * When I last looked to the east, except that bank of smoke, I saw only the freight train.” In the course of her cross-examination she says : “ The' bank of smoke was then to the north of me, and I, standing to the south of it and looking to the east, could see a train coming on track 2 if the train was down to-the east of the east end of the cloud bank. The cloud bank covered all the Central tracks except track 1, but didn’t cover track 1 so but that I could see; it covered the other tracks so I couldn’t see straight .ahead of me and right to the east — that is, through the smoke — but I could see ahead of it from the point' where I was standing. When I stood south of the tracks I could see along the south edge of the bank and see a train to the east, because the smoke was following along the train and settling over tracks 2 and 3.”
She was examined preliminary to the trial before a referee, and, when giving her testimony, the following occurred: “ Q. This question was also asked you, 1 Then, as I understand you, when you were crossing the Central tracks, and looked to the- east, you looked right-into this bank of smoke ? A. Yes, sir. Q. And every time you looked east you. did that, did you—• that is, looked east along the Central tracks ? A. Yes, sir.’ Q. Is that correct ? A. Yes, only I mean that on track No. 1 the smoke wasn’t so dense. It was more dense on tracks 2 and 3, where it settled from the engine, and extended from close to the crossing over tracks 2 and 3 down as far as the engine of the freight going east. * * * But between the •east end of the bank of smoke and Childs street track 2 was covered by smoke.” ■ '
Her companion, Smith, was called as a witness in her behalf, and, in the course of his testimony detailing the circumstances of their approaching the tracks, he says : “ When the freight was passing over the crossing thick smoke was coming from the locomotive and. was falling to the ground ; seemed to stay right along by this freight, covering the first couple of tracks a little way downi; the bank of smoke was a little way down from the Childs street crossing'; could not tell just how far; I could not see through that bank of smoke; it was not of the same density near the crossing that it was further down; it was quite a ways down before it got so dense one could not look through it. When the train struck plaintiff she was to the right of me, and the passenger train struck her in the back some[455] where and knocked her down, face downward, and the blow of her knocked me on to my knees.”
In the course of his cross-examination he stated that the smoke was higher than his head, and added“ As it came more towards Childs street it came down lower, and when it got up by the engine it was as high as the crossing and laid along those tracks black and heavy. * * * I was not aware of the approach of the train that struck Miss Vahue until it struck her. As I approached the freight train its noise grew louder; that made more noise when I got on No. 2 track. I looked constantly all the way across the track, first one way and then the other. When I looked west "I could see all the tracks, and when I looked east I could see this bank of smoke, and when I looked north I could see this freight running over the crossing, and those were all the things I did see.”
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Hardin, P. J. :
On the night that jilaintiff received the injuries complained of she had been visiting at the house of Mrs. Melville on the east side of Childs street, south of the defendant’s tracks, and she started to go northerly on the easterly side of Childs street in company with Mr. Smith. Before reaching the Central tracks she was required to cross a switch of the Buffalo, Rochester and Pittsburg road, and she testifies that, after passing the main track of that road, as she was approaching the Central, she stood long enough to look up and down the tracks before she advanced, and as she approached the tracks of the defendant’s road she discovered there was a freight train approaching from the west, and that the engine of that train was emitting large clouds of smoke, and that she stopped and waited for the freight train to pass the Childs street crossing. She testifies, viz.: “ I looked on the Central tracks and noticed there was smoke coming from the freight engine, covering the Central tracks. I think the ■ freight engine at that time was very near to or had crossed York street to the east, and the smoke from the engine was falling down over the track, covering the tracks, falling to the ground; it extended up as high as the freight cars. * * "" When I last looked to the east I was just about to leave track 2, or had just left it. Did not stop to look, simply slackened. When I last looked east 1 saw a big bank of smoke coming from the freight train, so dense that I could not see through it on track 2; it was as high up as the cars, and covered the Central tracks east of the crossing. As I looked east at that time the smoke obscured the view of No. 2 Central track, hut did not obstruct the view to the east of the other tracks south ; not so dense but that I could have seen any trains coming on those south tracks. The farther south you got the less dense the [454] smoke was. * * • * When I last looked to the east, except that bank of smoke, I saw only the freight train.” In the course of her cross-examination she says : “ The' bank of smoke was then to the north of me, and I, standing to the south of it and looking to the east, could see a train coming on track 2 if the train was down to-the east of the east end of the cloud bank. The cloud bank covered all the Central tracks except track 1, but didn’t cover track 1 so but that I could see; it covered the other tracks so I couldn’t see straight .ahead of me and right to the east — that is, through the smoke — but I could see ahead of it from the point' where I was standing. When I stood south of the tracks I could see along the south edge of the bank and see a train to the east, because the smoke was following along the train and settling over tracks 2 and 3.”
She was examined preliminary to the trial before a referee, and, when giving her testimony, the following occurred: “ Q. This question was also asked you, 1 Then, as I understand you, when you were crossing the Central tracks, and looked to the- east, you looked right-into this bank of smoke ? A. Yes, sir. Q. And every time you looked east you. did that, did you—• that is, looked east along the Central tracks ? A. Yes, sir.’ Q. Is that correct ? A. Yes, only I mean that on track No. 1 the smoke wasn’t so dense. It was more dense on tracks 2 and 3, where it settled from the engine, and extended from close to the crossing over tracks 2 and 3 down as far as the engine of the freight going east. * * * But between the •east end of the bank of smoke and Childs street track 2 was covered by smoke.” ■ '
Her companion, Smith, was called as a witness in her behalf, and, in the course of his testimony detailing the circumstances of their approaching the tracks, he says : “ When the freight was passing over the crossing thick smoke was coming from the locomotive and. was falling to the ground ; seemed to stay right along by this freight, covering the first couple of tracks a little way downi; the bank of smoke was a little way down from the Childs street crossing'; could not tell just how far; I could not see through that bank of smoke; it was not of the same density near the crossing that it was further down; it was quite a ways down before it got so dense one could not look through it. When the train struck plaintiff she was to the right of me, and the passenger train struck her in the back some[455] where and knocked her down, face downward, and the blow of her knocked me on to my knees.”
In the course of his cross-examination he stated that the smoke was higher than his head, and added“ As it came more towards Childs street it came down lower, and when it got up by the engine it was as high as the crossing and laid along those tracks black and heavy. * * * I was not aware of the approach of the train that struck Miss Vahue until it struck her. As I approached the freight train its noise grew louder; that made more noise when I got on No. 2 track. I looked constantly all the way across the track, first one way and then the other. When I looked west "I could see all the tracks, and when I looked east I could see this bank of smoke, and when I looked north I could see this freight running over the crossing, and those were all the things I did see.”
In the course of the evidence delivered by the plaintiff before the referee, which was read upon the trial of this action, she stated: “ I noticed this smoke coming from this freight engine and going to the ground -toward the south. It settled over the Central tracks; over all of them. It settled down over track No. two (2), down close to the ground; I don’t know how high up it reached. It came up high enough to interfere with my sight; higher than my head. As I walked over the track I noticed smoke; I smelled smoke. There was a bank of smoke to the east of this crossing coming from the freight train, hanging over the tracks there and falling down to the ground and up-as high as my head. It was hiding all the tracks to the east. I noticed that before I got to the Rochester & Pittsburgh tracks and before I went on to the Central tracks. I saw it down there so thick as to interfere with my view. There was smoke, to the west of the crossing alsOj so that the whole crossing was invisible from smoke from this freight train at the time I crossed over. The smoke interfered with my view of the train that struck me. I saw that smoke there as I went on to the track, and when I looked, to the east first I saw the smoke there hanging over the tracks. It hung over .the tracks so you couldn’t see the tracks, and couldn't see what was coming on them. That smoke hung in such a heavy cloud over the tracks all the time from the time that I first went on to the Rochester & Pittsburgh track until I was struck. The smoke east of me was so dense I couldn’t see a train coming; I [456] couldn’t see the headlight of a locomotive. I knew it was as dense as all that, and I realized it at the time. * * * I mean to say that the smoke from this freight settled down on the New York Central tracks east of the crossing, and covered all of them except the one that the freight was running on. That was running on the ■ north track, and there were three Central tracks to the south of that. I say that the smoke of that engine settled over all of those three tracks to the south of the north track, and was so dense that I could not see through it to the east of the crossing. That smoke went as far to the east as the engine of the freightI mean to say that at the time I undertook to cross there was a1 mass of smoke over all those tracks from the crossing way down where the engine was. There was no smoke on the crossing itself. The smoke .was not so dense right at the crossing as it was .east of it. At the crossing you could see right straight ahead looking north, but you could not see to the east along any of the New York Central tracks.”
■ Some other circumstances are mentioned in the testimony ' descriptive of the situation at- the time the engine, coming on the track from the east, came in collision with the plaintiff and caused the injuries of which she complains.
Mr. Titus, an engineer, testified that the Central tracks east of the crossing are straight until you get down as far as York street, and that the distance from the east line of Childs street to the west line of York street is 310 feet.
Some other circumstances and some further evidence were given by the plaintiff and by Mr.- Smith.- . ■
Recognizing the rule that the plaintiff having been nonsuited, is entitled to the benefit of the most favorable view that may be taken . of any of the evidence and of such inferences' as. may be legitimately drawn therefrom, we are of the ojDinion that the plaintiff failed to establish that she was free from contributory negligence on the occasion of receiving the injuries of whicti she complains. It is quite evident that if the jury had been permitted to find, tip.on the evidence given by the plaintiff, a verdict in her behalf, it would have been the duty of the court to set the verdict aside as against evidence.
It was incumbent upon the plaintiff to show, and she had the burden of satisfactorily establishing, that she was free from contributory negligence.
[457] When approaching the tracks of the defendant and finding that her vision was interfered with by the smoke, as described in the evidence, it was her duty to have remained off of the tracks until the smoke lifted and she had a clear sky in which to apprehend the approach of trains from either direction. Instead of performing that duty, she seems to have been either occupied with her friend, or for other reasons to have been careless and negligent.
It is quite well settled that parties finding the tracks covered with smoke from a passing engine, are required to omit to venture upon them and take the chances of its obscuring the correct vision. (Heaney v. L. I. R. R. Co., 112 N. Y. 122; Lortz v. N. Y. C. & H. R. R. R. Co., 83 Hun, 271; Whalen v. N. Y. C. & H. R. R. R. Co., 40 N. Y. St. Repr. 566; Foran v. N. Y. C. & H. R. R. R. Co., 64 Hun, 510.)
Our attention is called by the appellant to Beisiegel v. N. Y. C. R. R. Co. (34 N. Y. 622). That case, in its facts, differs essentially from the case at bar. Porter, J., in his opinion (at p. 632), says: “ The proof is clear, not only that he was free from negligence, but that he exercised more circumspection and care than most men would under similar circumstances.” ■ We cannot say that the plaintiff in this case exercised such care and caution. Had she done so she would not have been injured.
We think that the nonsuit was properly granted and the exceptions thereto present no error.
Plaintiff’s exceptions should be overruled and motion for a new trial denied, and judgment should be ordered for the defendant, on the verdict, with costs.
All concurred, except Ward, J., who dissented on the ground that the question of contributory negligence was for the jury.
Plaintiff’s exceptions overruled and motion for a new trial denied, and judgment ordered for the defendant, on the verdict, with costs.