LAUGHLIN, J.:

This is a statutory action to recover for the death of plaintiff's intestate, which it is alleged was caused by the defendant's negligence. The defendant owns and operates a railroad along the easterly shore of the Hudson river from West Thirtieth street to Spuyten Duyvil, consisting of two main tracks with a siding upon either side crossing One Hundred and Thirty-fourth street. There are public highway crossings at grade at One Hundred and Thirty-fourth and One Hundred and Thirty-eighth streets. Between these points there is no intersecting street crossing, and the tracks run north and south in nearly a straight line, close to the river, with an elevation to the east. The decedent was a member of the Lampe Fishing Club, which had its headquarters in a little boat house about two hundred feet south of One Hundred and Thirty-eighth street, the westerly end of which rested on piles driven into the river bottom, and the easterly end was supported by a retaining wall extending partially along the water's edge. The members reached the club house both from One Hundred and Thirty-fourth and One Hundred and Thirty-eighth streets. The width of One Hundred and Thirty-fourth street is sixty feet, and the pavement over the crossing is forty feet wide. Between the tracks and the river, from One Hundred and Thirty-fourth street north to about the line of One Hundred and Thirty-fifth street continued, there was a paved way used by the public to walk and drive over, but this seems to have been on the defendant's right of way. North of this there was a bulkhead and a narrow space or path west of defendant's tracks to the boat house. The club was composed principally of laboring men, who went there to fish in the evening.

The decedent had been a member for several years, and attended there frequently in the evening during this period. He was there on the evening of the 20th day of July, 1901, and two or three minutes before nine o'clock, in company with another member, he started south from the club to go to his home on Manhattan street. There was a regular south-bound passenger train which crossed One Hundred and Thirty-fourth street at about one minute after nine in the evening, which seems to have become well known to the club members, and is spoken of as the "Dolly Varden." The theory of the plaintiff is that the decedent was struck by this train. Although there is evidence indicating that the train was going faster than usual, the undisputed evidence shows that it arrived at the station below on time that night. The evidence shows that the decedent's body was found between the rails of the south-bound track, from five or ten feet to half a car-length north of the paved portion of One Hundred and Thirty-fourth street, which, assuming that the pavement is in the middle of the street, extends to within about ten feet of the north line of the street, and part of the body of his companion was found about one hundred feet south of the crossing, and the other part about the middle of the crossing. The main tracks were used for both passenger and freight trains.

The only person who testifies that he saw these men after they left the club house is one Smith, who was called as a witness for the plaintiff. He says that he was fishing from the dock at One Hundred and Thirty-eighth street from six o'clock in the evening until about eight, when he went down to One Hundred and Twenty-ninth street to meet "a couple of * * * fellows," but, not meeting them, he started back, walking on the railroad between the main tracks until he reached One Hundred and Thirty-fourth street, where he waited simply to watch a freight train of about sixty cars pass north on the north-bound track, and not with any desire to cross to the east; that while standing between the main tracks on the south side of the crossing at One Hundred and Thirty-fourth street, he saw two men, ten or fifteen feet north of him, coming down the paved way which is parallel to and west of the tracks; that the freight train was going about fifteen miles an hour, and "she was puffing pretty heavy, and the rattle of the bumpers and the chains — you couldn't hear nothing come;" that when he next saw these men they were standing side by side between the south-bound track and the westerly siding, five or six feet behind and about the same distance to the south of him, and he saw them look north along the track; that he looked up the track and saw the passenger train approaching; and then, contradicting himself, he states that he was not able to see either the train or headlight or hear any bell or whistle, although his sight and hearing were both good; that the night was very dark, and the smoke from the freight engine settled down on the crossing and made it so much darker that he could not see anything; but that the smoke "was not exactly so thick" that he could not see a good headlight; that this smoky condition lasted until half the freight train had passed over the crossing, which was about the time the passenger train came; that after he looked around and saw the men, and before he had time to look north again, the passenger train went by "like a flash of lightning," and the suction of the wind threw him over against the freight train and "by luck" he caught a bar or handle at the end of one of the cars and drew himself up on a step until the passenger train passed, when he says he dropped off before reaching a point opposite One Hundred and Thirty-fifth street, and went back and found the bodies of the two men.

The complaint seems to have been framed upon the theory that this paved way running north from One Hundred and Thirty-fourth street between the tracks and the river was a public way, and that the decedent was struck by the train while on it "at or near" the crossing of One Hundred and Thirty-fourth street. If the decedent was not on the crossing of One Hundred and Thirty-fourth street, but was walking down or alongside the tracks from the club house, he was a mere licensee at most, and the liability of the defendant would have to be determined upon principles and evidence entirely different from those applicable or controlling in the case of an injury at a public crossing. The defendant objected to any evidence tending to show that the accident occurred on the public crossing, and excepted to the charge of the court by which the case was submitted to the jury solely upon the theory that the decedent was struck upon the crossing of One Hundred and Thirty-fourth street. No motion was made to amend the complaint to conform to the proof. This would seem to be error, as it is very doubtful whether under the complaint the verdict could be sustained on the theory on which the case was thus submitted to the jury.

We are, however, of opinion that the verdict is against the weight of the evidence and contrary to the probabilities of the case. There were freight cars standing on each siding, both north and south of the crossing. If, as claimed by the only eye witness, the decedent came down the paved way to the west of the tracks and passed around the cars on this siding onto the paved crossing, it is inconceivable that his body should be found five or ten feet or a greater distance north of the paved part of the crossing. Assuming that he was struck by the south-bound train, Smith at no time located the decedent anywhere near as far north as the body was found; and certainly the probabilities are that his body would not be moved north by being struck by the locomotive of a train moving south. We are of opinion that the physical facts indicate quite clearly that the decedent was struck, not upon, but north of the crossing of One Hundred and Thirty-fourth street, and, therefore, the verdict should not be permitted to stand.

Furthermore, if the decedent was struck within the lines of One Hundred and Thirty-fourth street, the finding, which is implied in the verdict, that he was free from contributory negligence, is, we think, against the weight of evidence. Presumably the decedent was aware that the passenger train was about due, and that, while a flagman was stationed at this crossing during the daytime, none was there in the evening, and that there were no gates or mechanical devices for warning people of the approach of trains. The evidence on the part of the plaintiff tends to show that no bell was rung or whistle blown on the passenger locomotive; but this was controverted. A witness who was standing on the stoop of the club house testified that the headlight of the locomotive was smoky and only threw its rays about five feet; but he admits that he saw the headlight at One Hundred and Thirty-eighth street, which he thought was about 250 feet distant; but a civil engineer gave the distance at 360 feet. The evidence on the part of the defendant is to the effect that this was an ordinary headlight, not dimmed or obscured; that the illumination caused by it was increased by the light in the combination car and a regular passenger coach attached to the locomotive; that the speed of the train was fifteen miles an hour. Witnesses upon both sides give the startling information that the rays of light from an ordinary passenger locomotive headlight on a dark night are not observable on the track more than twenty feet ahead. The distance between the south-bound track and the westerly siding is seven feet three and a half inches. Assuming that the decedent came down the paved way west of the tracks, and was south of the middle of the paved crossing of One Hundred and Thirty-fourth street, where Smith places him, he must have known that he could not pass over the crossing until after the freight train passed; and if the freight train was emitting smoke that enveloped the crossing, it was not an act of prudence or the exercise of ordinary care on the part of the decedent to step and stand upon the main south-bound track or sufficiently near it to be struck by a passing train, when he knew that the passenger train was about due, that the noise of the freight train would tend to and might prevent his hearing any signal of the approach of the passenger train, and that the smoke would obscure and might prevent his seeing the headlight. ( Heaney v. Long Island R.R. Co., 112 N.Y. 122; Whalen v. N.Y.C. H.R.R.R. Co., 40 N.Y. St. Repr. 566; Koehler v. Rochester Lake Ontario Ry. Co., 66 Hun, 566; Vahue v. N.Y.C. H.R.R.R. Co., 18 App. Div. 452; Piper v. N.Y.C. H.R.R.R. Co., 156 N.Y. 224.)

While the extraordinary feat claimed to have been performed by Smith in being able to seize hold and climb upon the freight train, which was passing at the rate of fifteen miles an hour, after being forced against it by pressure of air caused by the passenger train, was not impossible, we think it extremely doubtful whether he would then risk dropping off the side of the freight train going at this high rate of speed in the dark, and accomplish all this before riding a block on the freight train. This witness testifies that the body of the decedent was found from five to ten feet north of the paved crossing; and this and the other evidence on that point is not reconcilable with his testimony as to where he saw the two men just before the accident. The burden was upon the plaintiff to show that the decedent was free from negligence contributing to his death ( Wiwirowski v. L.S. M.S.R. Co., 124 N.Y. 420); and while it may be that the evidence was sufficient to require the submission of that question to the jury, which is doubtful, we are of the opinion that the verdict is clearly against the weight of evidence, and that justice requires a new trial.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

VAN BRUNT, P.J., INGRAHAM and McLAUGHLIN, JJ., concurred; HATCH, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.