By the Court.

Mullin, P. J.

The plaintiff, as administrator, brought this action to recover damages *20for the killing of William Hackford, at Geddes, in the county of Onondaga, in December, 1889, by reason of the negligence of the employees of defendants. The deceased was driving his team from the city of Syracuse to his residence, some fifteen miles from the city. It was a very stormy day, snow was falling, and the wind was blowing very hard.

The street along which the deceased was driving runs east and west, at the railroad crossing, where the accident occurred, and it crosses the track at nearly right angles. The deceased was going west; the engine, by which he was struck, was moving north at about twenty miles per hour. There was no sign up, indicating that there was a railroad crossing at the place of the accident; the sign that had been up having been removed. A carman, with furniture in his cart, crossed the track just before the deceased attempted to cross; there were other teams approaching the track from the east.

The drivers of the other teams stopped, seeing the approaching engine, and cried “whoa” to the deceased, just before he got on to the track ; the deceased did not regard them, but drove on and was instantly struck and killed.

On the trial, plaintiff’s witnesses testified to the foregoing facts, and also, that as the engine approached the track, the bell was not rung, nor was the whistle blown, These omissions of duty, together with the rate of speed and absence of a sign indicating the crossing, constituted the negligence on the part of the defendant.

The defenses set up in answer were : First, a general denial; and, Second, concurring negligence on the part of the intestate.

The evidence of negligence on the part of the intestate was:

1. That the railroad track could be seen by a person going from Syracuse, towards the crossing, for a dis*21tance of some half a mile, except where houses intervened. The track was higher than the land on either side, and higher than the street. Hear the crossing, a train could be seen, for a distance of fourteen hundred feet in one direction, and an eighth of a mile in the other.

Henry G. Allen testified that he lived at Geddes, in a house on the north side of Genessee-street, some six or ten rods from the crossing. He was in the street at the time of the accident, and saw the train approaching some six or eight rods from the crossing.

Michael Ready testified that he lived at Geddes, on the north-west side of Genessee-street, and east of the railroad. At the time of the accident, he was standing seven or eight rods from the crossing. Heard a, man shouting “whoa; ” looked, up and saw the train passing, and just about the same time, saw the smoke-stack of the engine; and then the collision occurred almost instantly, not half a second after he heard the cry of “whoa.” The intestate, with his team, passed along pretty swift. When he first saw the intestate, he was within a rod of the track, and when he saw the engine the intestate was going right on to the track.

Justin M. Woodford testified that the storm was very severe ; so severe that you could not see many rods.

Henry D. Gregory was the carman who crossed the track ahead of the deceased, and he testified that before he crossed, he did not hear or see the cars. He could not see, by reason of the storm, any further than the horses’ heads, not unless he looked pretty sharp.

Upon this evidence the plaintiff was nonsuited, on the grounds that the deceased was himself guilty of negligence.

The plaintiff's counsel asked the court to submit the question of concurring negligence to the jury.

The request was refused, on the ground that there was not sufficient evidence to go to the jury ; and to *22this ruling plaintiff’s counsel excepted, as he did to the granting of the nonsuit.

The court committed a grave error in refusing to submit the question of concurring negligence of the deceased to the jury. Had the day been a fair one, so that there was nothing to prevent a person from seeing and hearing an approaching train, I should be of opinion that the deceased would have been chargeable with the grossest negligence. The day was a very stormy one, the wind was high, and snow falling in large quantities, and, of course, it was carried by the wind against the faces of those traveling against the wind. From what point of the compass the wind was blowing on the day of the accident does not appear in the case.

But it does appear that the man who crossed the track just ahead of the deceased, could not see further than his horse’s head, unless he looked pretty sharp.

There is no evidence that a person approaching the track could see an approaching train at a greater distance than six or eight rods from the crossing.

If the train was moving twenty miles per hour, it would move the distance of six rods in a little over a second. If, then, we could assume that the deceased saw the engine six rods before it reached the crossing, he had no time to save himself,—he must have been on the track, and escape impossible.

If we assume that he did not look for an approaching train, and it would, under ordinary circumstances, be negligence not to look, yet when it is demonstrated that if he had looked, he could not have escaped injury or death, surely his right to recover of the party whose negligence caused the injury should not be denied him ?

Again, it was shown that the man who crossed ahead of him did not hear the approaching train, and by reason of neither seeing or hearing it, nearly lost his own life. Must we not assume that the deceased did *23not hear it, and, therefore, his senses failed to apprise him of his danger ?

Is it probable that two men rushed recklessly into the jaws of death, having knowledge that death was imminent ?

If we are to indulge in presumptions, is it not the rational one that men use their senses for their protection, when they have reason to suppose that danger is impending ?

If, upon the evidence given by the plaintiff, the jury could reasonably feel that, by reason of the storm, the deceased could not, in the absence of ringing of the bell, or the blowing of the whistle, ascertain the approach of a train in time to escape a collision with it, would not a verdict for the plaintiff have been sustained ? That such a state of facts might have been found from the evidence, I entertain no doubt.

It was, therefore, the duty of the court to submit the question to the jury, as to the concurring negligence of the deceased, and because the request to submit it was refused, a new trial must be granted.

The learned judge said, in granting the nonsuit, that the plaintiff had the affirmative of showing by the evidence that he was free from any negligence that contributed to the production of the injury.

This remark cannot be the ground for granting a new trial, if it is erroneous, but it may be taken into consideration in determining the weight the court gave to the evidence of the concurring negligence of deceased, when it refused to submit the question to the jury.

If the learned judge intended to hold that the plaintiff is bound to allege in a complaint in an action for damages resulting from an injury caused by the negligence of the defendant, and to prove affirmatively on the trial that he (the plaintiff) was not guilty of negligence that contributed to the injury, he was mistaken.

*24The concurring negligence of the plaintiff is a matter of defense, and the plaintiff is under no obligation to prove anything, to entitle him to recover, but the injury, and that it was caused by defendant’s negligence.

No precedent of a common law declaration in a case for negligence can be found, I think, in which plaintiff asserts that he was free from negligence, nor any decision that he is bound to make such proof (See precedents in case for negligence, in 2 Chitty Pl.).

But where, on the trial, there is evidence of negligence on the part of plaintiff, whether it comes from plaintiff’s or defendant’s witnesses, the plaintiff must overcome it, in order to entitle himself to recover. In this way, and in this way only, is the plaintiff bound to disprove his own negligence.

To meet the view of the court, that the plaintiff had the burden of proving the absence of negligence, affirmatively, a higher degree of proof was demanded than he was bound to make, and thus wrong was done to the plaintiff.

If, however, the court merely meant to say that plaintiff’s own evidence shows his negligence, and that it concurred to produce the injury, and he must, therefore, give evidence to rebut the inference of negligence resulting from the evidence he had himself given, he was, doubtless, correct. If plaintiff’s witnesses proved defendant’s defense, it was as available as if proved by itself. This construction of the charge would hardly be consistent with the proposition that the plaintiff had the burden of disproving negligence.

If it had, it must follow that the law must presume negligence against him. On the contrary, negligence is never presumed, but must be affirmatively proved.

There must be a new trial, with costs to abide the event.