*1 A-g E C S THB DETBB2HHED IS OF APPEALS COURT
OF THB 1866, ¡March. A.. Term, D. A-t the Executrix Henry Ernst, Appellant, Ernst, Martha Respondent. Hudson River Railroad Co., give signals required by company by a- the the railroad The omission eighty approach highway of a within rods of a statute, locomotive passengers, duty safety imperils, the crossing, whose is a breach exposes to mutilation wayfarer, and death. whom company dangerous, only by propelling the it so crossing makes is Such statute, therefore, protection it; human engines its across injunction warning approach danger. life, public of the such exacts company peril absolute, so plain and the which violates it does at its is customary signals company a'n assurance is The omission eighty engine approaching from either side traveler, within rods that no may rely assurance, incurring crossing; such without wrong-doer. to a imputation breach of proximity advancing train, immediate of an passer-by knows "When by signals otherwise, and, having warning a safe whether voluntarily stop, the risk of takes opportunity to seasonable culpable negligence all and forfeits claim to it, guilty of redress. he is front of wayfarer right warning withheld, has assume the usual But when law, safe, company violating is not crossing is signals. life, running without endangering human only ordinary public highway, is to the exercise of citizen, bound company, negligence a railroad injured it is he is and when care; redress, that, notwithstanding the omission of claim for no answer greater vigilance, have might, by discovered signals, he statute, relying upon instead of its foreseen violation train, if he had observance. Tiffany — YIII. Yol. v. Hudson River
Statement of case. stop traveler highway, up is not bound to on the' or look and down an intersecting railway crossing, track signals before when are there of an approaching engine. Ordinarily, description, in cases of this party injured whether culpable negligence, free from by was is one of fact to be determined jury, appropriate instructions, subject under revisory power and' the courts. proof undisputéd decisive, Where the and plaintiff guilty was misconduct, injury, and this contributed to the right; nonsuit is matter equally right it is negligence but matter of have issue of submitted to jury, depends conflicting evidence, on inferences to be variety circumstances, deduced from a regard in to which is room there opinion intelligent upright for fair difference between and men. case, occasion, The decision in reported erroneously this on a former in 24 B., How. Pr. 9*7.
Appeal Court in the judgment Supreme third a nonsuit on the trial at district, judicial sustaining Rensselaer Circuit.
The action was as the widow by plaintiff, brought executrix of the and sustained testator, damages in act and defendant, unlawfully negligently killing at her on the 29th husband, Bath, the,village day 1855. December, in
The suit was commenced 1856. The first trial was Mr. Justice who nonsuited the before plaintiff. Gould, heard at General Hoge- The case was before Term, Judges The nonsuit set was aside and Beckham Gould. boom, was a new trial court granted; opinion being by Judge Hogeboom, J., dissenting. delivered Gould, 159.) Barb., (32
The second before trial, February, Judge Hogeboom, A resulted a verdict for the motion for 1861, plaintiff. new on the that the verdict was evi- trial, against ground made denied at Term. An was dence, Special taken from the as the well order, judgment, appeal heard before on case Judges Weight, exceptions affirmed Both and Gould. were General Hogeboom court delivered Term, being Judge opinion and Gould, J., dissenting. Weight, defendant new trial was appealed, granted v. Hudson River Railroad
Statement case. An court. erroneous imperfect here divided by' found in 24 How. Pr. will be 97. R., of the case report non- trial, Hov., 1865, On the last plaintiff affirmed in the and the pro suited, judgment forma court below. than much more
The facts fully developed and material additional evidence trial, given, previous the defendant to relied repel proof impute *3 At the close of the to evidence, the plaintiff. negligence made for a which was was nonsuit, motion granted, views deference to from head-notes of supposed, in 24 as have received the How., case sanction reported court. of this been the truth of plaintiff having nonsuited, such disinterested and
facts credible proved by witnesses without to be reference to assumed, evidence contradictory the defendant. The material facts thus established are follows: The testator resided in the of county about Rensselaer, miles of fifteen city was Albany, his market His consisted of wife family town. and six daughters. 45 He about of was He was an years age. active and man. industrious His health was good; his habits. were vision clear. He was regular, accustomed to the use of and had been teamster horses, on the road from Sandlake Albany He twenty-five was years. familiar with the railroad, ferry, station signals, and the localities.
(cid:127) The at which he was killed is in crossing of village near the river side. He Bath, was down driving Rensselaer street at ferry its landing foot, purpose The railroad' Albany. crossing intersects that at street he was angles. highway right traveling, ferry he was had to which been bound, used as such for more than half this was the century; point convergence thoroughfares and the principal usual Rensselaer, route travel Albany by ferry connecting city Bath. Hext east village track is railway River Railroad Hudson
Statement case. feet street which crosses Rensselaer Broadway, sixty wide, at street with the river. On the right parallel angles, being southeast corner these two streets hotel, Dearstyne’s which the rode some fifteen testator, miles, having stopped to warm before ferry, being morning very cold. Yan whose team was in front of Denburgh, his, at the and on out store, drove down to the stopped coming On he saw Ernst into his back, ferry-boat. looking get his team and turn drive down toward boat. sleigh, ten This was little before o’clock in the morning. The distance from hotel to the railroad track Dearstyne’s about feet from there to the feet, was ferry 112-J- The descent from the hotel to the track was landing. but from there to the it Rens- moderate, ferry steep. like feet selaer wide. street, Broadway, sixty on the north side of station-house was where Broadway, view of the traveler as he near obstructed the approached Ernst, After removed the track. killed, *4 on the where does not side, opposite appropriate place an hide the The railroad track engine. from the north on a curved line, approaches and near a level the river side. below upland running the river side of the There is an ice-house on which is track, 36 rods or 594 feet north from crossing; point in the road to the there is a curve northeast. There sharp in Rensselaer from down street, is point Dearstyne’s where a erect and station-house, man, standing looking could see an train before north, approaching directly at which it the ice-house. The reached only point, possi- this before to see distance, just ble station. reaching lan,d Rensselaer- street elevated between and the ice- an intermediate trees, and sound park intercept house, and limit the train an vision. The range approaching feet north a hundred and within Rensselaer .fifty ground, than the level of the is twelve feet street, streets higher still and there the commences, and railroad, further park the northern view. obstructing he had driven horsed round when to the
Ernst, stopped, v. Hudson River Railroad Ernst of case. Statement front hotel Dearstyne’s Broadway; turning them to resume his Rensselaer round, street, way faced full and had a view necessarily north, open the track for rods north of the which was twenty crossing, the limit at the intersection range vision, only of Rensselaer street hut also for considera- Broadway, westward distance toward crossing. ble heAs looked the natural of observa- north, this, point train in there was no and as he looked tion, view, west, that there saw was no at first aon flagman. walk, Starting then took slow horses until trot, they kept they were near the station-house. The was about ferry-boat who near the starting, Simmons, standing crossing, hailed to the down, seeing driving to wait ferryman for him. Simmons then to Ernst to on, beckoned hurry the boat him. were also made to waiting Signals him from the boat to on. He come started his -horses up to a brisk were within two or three trot, just rods of the in full motion, from track, engine emerged station-house; behind with the rush simultaneously man old who Rouse, advancing train, happened Hunter, on the station who stood standing platform, on the on the store south side of the stoop street, him hallooed to and the opposite directions; frightened horses southward where the team plunged knocked down Ernst received the engine, blow he died. defendant’s fireman admits of which that he saw testator back his ineffectually keep attempting *5 horses.
It that this a station for a was was proved flagman, that it had the was, been, uniform long practice known and relied on those who traveled company, the when train was near road, give warning sufficiently make the crossing dangerous, by having flagman middle of the if track, white the train was holding up flag and a if it was to without stop, pass reg flag stopping.
Four witnesses who saw whole trans- plaintiff, and who knew that swore he action, Hiller, flagman,
\ Hudsou Ebitst River Statement of case. was no defend- there, not that was there. Of the flag ant’s that Hunter and the both swore witnesses, engineer no fireman that there there was testified flagman. he and that he saw him but one, flag; waving his own oath the coroner’s before jury, impeached by he that he where swore saw positively flag. sounded, nor the whistle
The bell was rung is true that train approached crossing. actors in immediate who were the fireman, engineer that claimed of Ernst, they gave the death causing state- not confirm their trackman did but signals, he was admitted that and the conductor ment; frankly if it he have heard the bell where could baggage-car, that he habit of signals; had been noticing rung; that the first that could not the bell was rung; say blown when it was apply he heard of the whistle was The defendant’s wit- at the of collision. the brakes point feet of the who within ness Hunter, thirty-five standing that admits up looking crossing,'unoccupied it was within when he discovered approach a hundred and feet of about 'sixty crossing, or whistle. heard no either bell engineer signal over the sworn at the body himself when admitted, inquest when not have been that the bell Ernst, ringing might stand- ferryman, came to the Dearstyne, crossing. they for the look-out signals, boat the landing, ing nor sounded the the bell neither swears they rung to do after the when they whistle until collision, began the omission in he had observed both immediately; on the look-out passen- some instances, being previous their when he heard trains; by stopping gers when he feet within three hundred crossing, they got buildings; reason intervening could not see them, by to it at time, drawn by hearing that his attention was the bell was not and that cars before he saw them, the train came sight. ringing ice-house, at the thirty- who was Brown, drawing gravel neither blew that testifies rods above crossing, six *6 y. Hudson River Railroad Go. , Statement of case. nor as
the whistle bell they cross- rung ^approached that attention was drawn to fact ; at ing particularly had that he occasion to drive time; across the track just at the corner of the another team ice-house, gravel having the track crossed before that just him; his horses just the track were across and his this train it, wagon within less than a hundred suddenly appeared, feet of that until then he neither him;, saw nor heard its that the train on while he and the approach; passed other. teamster were of the omission of the speaking signal; that within half an after hour he went to the crossing to water his and then he horses, heard of the collision by which Ernst was killed.
Ten who was the store and Eyck, within some thirty or feet forty unoccupied crossing, looking up that testifies the bell was not nor the whis- rung sounded until after tle collision, that then they to do that he noticed the both; fact at the time, and began that he discovered the when were within cars, about they feet of the and he saw Ernst ninety crossing, driving up track and Hunter motions to him making immediately the collision. before
. and Travel- both heard Taylor testify signal after the collision, until after it the immediately sounded whistle bell was rung.
It was two very cars light only attached to being one a locomotive; other baggage passenger Two car. witnesses gave estimates, different from widely other, each distance a train be heard might one sound. One listening thought heard might and the other that one two it would miles, not be audible, the whistle would at a distance of seven be, or eight rods.
The fact of this partic- undisputed, train its ular was so from the of motion noiseless, rapidity the elevation wind, upland, intervening against the obstruction of trees and or the buildings, prevalence other sounds busy neighborhood, populous *7 Co. Ernst v. Hudson River Railload
Statement case. who was did not ferryman, look-out, even it it until three hundred feet of the detect was within cross- Ten and Yan all ; Traver, Eyck ing" Taylor, Denburgh, and did not hear it in the immediate could not at vicinity, it out from behind the station- until saw all, they rushing Brown testifies collision. before house, immediately that it was so was not that its imperceptible them him or his drove across the noticed horses, than a then within less hundred was feet track, though It that there four railroads him. was also were proved that the noise of immediate so cars, vicinity, on that did not indicate their absence of presence signals, road. and Dear with velocity;
The cars were moving great and knew trains, who waited styne, ferryman, the time at that were observed times at which due, they horn. The at the was proof were they regular passing the cars at the that the speed greater decisive were and that thirty-five forty than going usual, they the defend an hour. Of the miles inculpated employés at claimed that had been only ant, they going engineer an and the fireman hour, miles the rate about twenty-five at the rate ten fifteen miles were only they going admitted that on engine an but both hour; reversing unable brakes, they stop applying until reached cattle-guard, proved they below the nine hundred feet though they some crossing, half that distance. as less than proved represented railroad and the Mr. conductor, experienced Squires, at if had been fact was undisputed, they going only train that rate, had, reversing light of the brakes would have engines application stopped of the dis cars in fifty feet, being one-eighteenth part after run the collision. tance they turned horses when he round The fact Ernst, faced and looked north into Rensselaer, from Broadway as it as far was within range the direction n ofvision, range undisputed. proved Railroad v. Hudson River
Statement of case. *8 some rods north of the He was point twenty was crossing. some feet from when he started, 112£ of the witnesses to be testimony assuming plaintiff’s at was the rate of about six feet he true, advancing per and nineteen seconds him to the cross- second, bring If the was miles an ing. speed engine thirty-five was at the rate of three a about rods hour, advancing three and a half if its or rods second was second, speed an that miles hour. was Assuming coming only forty the rate miles when he thirty-five hour, engine, nineteen seconds before the was started, collision, fifty-seven rods north north rods of the crossing, twenty-one ice on the curve house, sharp far beyond "uplands, of vision. beyond" range could not did witnesses whether he did or testify
afterward turn his head to the north the few again seconds that intervened. There was no even where, point if he had been he could have seen the track standing erect, which within beyond was 594 feet of ice-house, lumber, But he on a was without a crossing. sleigh box, as usual in such he and, cases, was on the bottom sitting Ho as to the extent to sleigh. proof which given this reduced the vision. that in range proved it was not to turn west riding necessary head, see the track above the within the crossing, limits of probable his in that view There was no evidence that position. he did not look to the north repeatedly way down, unless it be inferable the fact there was no sound to call for or repetition signal precaution, further fact were him front to beckoning and that come on he was boat, approaching steep descent which attention to his required horses. "Whether he looked north the evidence again not, shows clearly that he could not have seen the in time to engine avoid for it collision; proved defendant’s witnesses that neither of the three men at the look-out in front saw either him or until team, instant very before the collision.
Tiffany—Yol. VTII. v. Hudson River Railroad Ernst case.
Statement of tied usual in neck, handkerchief round his He had cold weather. very
Hunter was called defendant prove feet from some crossing, standing thirty-five him him he called to Ernst was brisk passing trot, excited hold on. Hunter admits that was himself then and that the cars close frightened, crossing, being Ernst did not to hear him. appear met and Dear-
This evidence was Taylor proof did not, who styne, facing Hunter, *9 not hear Ten in front of same that who was him; Eyck, hear and feet did store within few Hunter, him, that at him and hand; saw with his though motioning the moment of Hunter’s Ernst was just driving warning, on the and feet of within sixty track, engine rushing him. claimed, to have trackman of who
Tator, defendant, in the at ten o’clock in the been morning passen- lounging Hunter was" also called to that while was room, ger prove side, to attract Ernst’s attention one endeavoring and the from the other, flagman warning hallooing that Ernst him He admits back from. crossing. then fifteen feet but it was by within track; proved main fact that the witnesses his statement tó untrue. utterly that made
The was clear motions were Simmons, proof and the motions Sim- Hunter that those who saw Rouse; them in front understood who alone was of Ernst, mons, that him which was on to ferry-boat, waiting; beckoning and saw his the halloo of motions Hunter, those who heard did Ernst were Rouse, not, those probably until whether were beckon- doubt, they engine appeared, or to back. him to forward go ing go if that the heard clear, was equally warnings, proof that the were were too horses late; seen Ernst, that fifteen feet the track; fall motion within they on the southward ties, were frightened plunged them tried to back. ineffectually Ernst pull v. Hudson River Railroad of case. Statement It was who acted as Gregory, proved engineer, was who himself as described some boy, eighteen years age he ran over and who had Ernst, when shortly before taken in machine been from work to act as shop engineer the defendant’s road. he and appeared Porter, the same who had run over fireman, employés killed another traveler some two months before in the city of Troy. Their and that of the trackman was disered- testimony
n ited evidence other case, given by disinterested witnesses. other trackman, swore that among things, the flag-
man was at- the a fact that is crossing, on all disproved that Ernst was within feet hands; thirty track and ten miles an hour, train was at the driving ice- 594 feet above; that rate, he driving stopped house. them remained directly there, standing still on the for a track until the came minute, waiting and struck them. down swore that it a local train at engineer the usual *10 a fact as to he
time, which -was that he flatly contradicted; the blew whistle rods and that eighty crossing; the bell was from that rung continually point down to on Rensselaer fact which he street; is confirmed neither the conductor nor and on trackman, which he Hunter contradicted and Yan two Denburgh, as witnesses as well defendant, by Taylor, 'and Brown. He swore Traver, before the coro- Dearstyne that he saw the motion to ner’s Ernst jury flagman stop, on last trial admitted that he. the statement was false. on the that after the swore inquest, warning by He faster Ernst reins or horses whip; flagman, urged trial and on the last he admitted the fact to untrue, swore he did not the team of all until after see Ernst at the collision. fireman that the other testified, whistle among things,
was blown more than rods above eighty crossing; was all the when the bell ringing that, way down; Hudson River Railroad Court,per Porter,
Opinionof he saw Rouse with a at ice-house, motioning was coro- own oath before the contradicted by He was flag. He admit- that he saw no where he swore flag. ner’s jury, he did not team see the testator’s the last trial, on ted, swore on until after the collision, though inquest did. on in behalf of the sworn plaintiff Seven witnesses in attendance on the were not previous who last trial, to discredit to material facts testified tending trial, the defendant, the facts before proved and rebut as the testator guilty negligence. on to relied inculpate excuse nor neither any defendant produced, gave Butler Simmons, Waltemyre, the non-production and on the former trial, three witnesses their' principal from the clearly pre- mainly, appears whose testimony, trial ordered when cause was the new vailing opinion, a former occasion. who Ostrander, this court on before was in 24 in the case report is erroneously represented under the trial then review in 99, .swearing Howard, facts deceased, to material inculpating this court, that or on last trial. either on all, sworn there evidently opinion, statement, prefixed entire of the review in the from the report substantially made trial, Court of previous plaintiff Supreme The review Barb., 159; How., 205.) (32 nonsuited. in which the the second trial, was of plaintiff court in this recovered. behalf of offered, plaintiff, dying
Proof that he had of the testator, warning declaration but the defendant objection *11 > it was rejected.
R. A. Pcermenter, appellant. H. Reynolds,
J. respondent. When this case was here on former occa- J. Porter, on the that a trial was nonsuit a new ground sion, granted the truth of a state of which facts, had been refused, upon [1] y. Ekhst Hudsoh Railboad Riveb Court, per Portee, of the That
there is now decision is pretense. in unreported one of but series; delivered in opinions this regular in another court contained law How. publication. (24 Pr., that In some report, through over- 97.) misapprehension well as the sight, head-notes, statement of preliminary erroneous. The are of the facts, essentially body opinion, discloses difference in the very however, striking evidence, as then and as now on the vital presented, question, whether was a plaintiff the husband negligent guilty parti- wrong defendant with which resulted cipant findWe more death. difference still marked on exam- which the printed cases, decision of ining this court was founded. that
It seems on that trial plaintiff surprised which she had no reason probably proof, but expect, not on the last she repeated trial, pre- with evidence to meet it. pared prevailing opinion at we are assumes—and liberty, bound, perhaps sup- that the Butler and Simmons, testimony pose Waltemyre, did the defendant whom call last trial, justified Ernst was intoxicated on the assumption—that occasion that he drove collision; so that carelessly by way that he at over; was cautioned nearly tipped the time him to drive more that person riding carefully; of the use of his he was deprived ordinary partially faculties; knew stated times for the that he of the trains; passage on its was, fact, this stated and cus- regular that it was due time; at that notoriously tomary hour; at which Ernst hotel, feet Dearstyne’s stopped, east that he started from track; there at a rate of rapid that other heard the train persons speed; coming quite after he started them, from the distance; tavern, four him in called to a loud voice to several respectively stop, each; times number of saw quite persons and that train; he had an view of open it, all nearly from the hotel to for a way distance of a crossing, hundred rods from the on which he was highway riding. 102, (24 How., 108, 110.) *12 v. Hudsost River [March Court, per Poster,
In the on the last evidence given trial, light like this not difficult to infer why testimony to meet it. when the prepared .was reproduced, plaintiff there was box on one of those swore witnesses, Simmons, on the box; seat testator’s represented, sleigh, had intoxicated who been substance, man, that this running had his head, eveyy tavern, his horses drinking ain that shawl; he, himself, well as bundled face, up big near the face heard the cars coming, standing half from latter down face with when the Ernst, way him or sake he would be told for Clod’s to stop tavern, swore with It on that occasion, killed. that Butler, appears matter in substance was, zeal. His version equal that he stood at the corner Broadway northwest there to Ernst as Rensselaer hallooed streets; hold that the testator he was on; appeared passing, in defiance of the hear turned head but him, and, away, on that drove on warning, Waltemyre, crossing.' Ernst as went further trial, effect, represented still, and, track in front his horses driving directly of its warned whistle, engine, though and the the bell flagman. these, then three now men, given testimony decision such a that,
withheld, upon fqrmer explains have It should been state of facts, nonsuited. plaintiff a divided that decision was court. also why explains contradic- not met Such testimony, though by point-blank in its and too inconsistent nature, was too tion, improbable credence with facts either obtain other proved, full confidence of to commend itself to the jury, the testi- case, It upon jurists. happened practiced in this court and the court then heard given, mony differed in five of whom ten below, by only judges, from the on the of fact jury. their conclusions hesitated have to be scarcely supposed if rendered it had been proof verdict, approve trial. subsequent respective parties presented relied on to facts then It now appears prominent *13 Co. Riveb Hudson Railboad Ebnst Court, Opinion per Postee, J. were fictitious. Instead testator a being
inculpate crazed with he is liquor, drunkard, proved stupefied and an sober orderly, citizen. respectable have been is he drank anywhere morning abandoned, pretense that he never him testifies knew and his family physician of the use of his Instead of intoxicated. being deprived a man in the to have been he is shown prime faculties, clear and with habits, vision, per- of life, regular horses of' Instead way, fect health. running from the tavern reckless with he is speed, starting an to have been experienced practiced driver; shown he started on this from the occasion, and it is that, proved and continued to drive hotel on a walk, moderation, The claim that he knew the judgment. prudence also abandoned. The of the trains is fact stated times its this a train, customary time, regular alleged by the defendant’s witnesses, even of none, except Gregory and he is contradicted an Dearstyne, the engineer; and disinterested who the time knew witness, intelligent waited them with his of the trains, ferry-boat, at the that this a train time, not then fact, observed the fact to be due. defendant, knowing issue, nor its confirmed time-tables, neither produced Gregory’s of its other statement by testimony any employés. from his absence flagman post strong presump- train due at that no tive evidence hour. "Under court has as matter such circumstances, right assume, that the statement law, inculpated impeached and that the of a contradictory is true, testimony engineer false. witness is and disinterested reliable instead testator’s It now that, appears riding in full feet view the the whole fifty hundred engine, track the hotel to the is less than distance from hundred and that he did see the feet, and thirteen all, from behind station-house, until emerged in the act horses were going upon crossing. very the hotel instead of that, down, also having, appears station-house, view of the open except opposite Ernst v. Hudson River Court, per Poster, northern for hundred track there rods, was but one place in the whole distance even if he had been where, standing he could have as far up seen it north expecting *14 as the was within and which five hundred ice-house, ninety- four feet of the The instead of crossing. being was The of straight, curved. instead view, sharply being was obstructed and open, woods by intervening upland. The natural when there was no point observation, signal of an at would be corner Rens- approaching selaer turned his as he horses round to the north street, it drove into from. Broadway. proof explicit, from that of vision is but about point range twenty and it is rods, decisive when was he at that that, equally behind hill at least point, engine woodland, rods above drove fifty-seven Ernst, crossing. down, on the bottom of his which had no sitting sleigh, box. narrowed his This, course, materially range vision, made intermediate fence additional obstruction every the view. There is no now one east the store pretense any the track either or heard the train at saw adjoins all, it until reached Ten and Hunter were crossing. Eyck two or rods of the at the within three rails. Both store, and both of them were north, looking unoccupied; yet until saw heard the it was within neither of them of Ernst than feet of the horses them, less two hundred in full It was then the track and motion. close being Traver, seen at all the witnesses Taylor, Dearstyne not until reached cross- and Yan before just Denburgh it until them heard then, none of except ing; who more familiar with sound, who was ferryman, direction below detected while first, looking within three hundred the river the cars were side, feet. to Ernst stop, claim that four men were hallooing is also now abandoned. half down, not
when was way yet and one from the store one hallooed all, But two men. between team was from the while the station-house, passing Eenst v. Hudson Riveb Raileoad Co. Court,per Poster, Opinionof the . fact is If of them said,
them. Ernst heard what either well that no one did. The else undisputed warning but it came too It was simultaneous with late. meant, res the rush gestee engine, plunge / and the to rein ineffectual the testator horses, struggle them back. is clear the bell was decisive, proof after the nor the whistle blown until collision. Only
rung were; two of defendant’s -that witnesses claimed they of that were two whose employés neglect Both cost Ernst his One them a mere life. boy. oaths on material their own impeached points, by two before the coroner’s had officiated some jury. They *15 was before and when Wilds months firemen, engineer as to the whistle killed. contradicted were They specifically and and of defendant’s five of the two bell, by confirmed and were by nobody. plaintiff’s witnesses, they On that this was sta- the last trial it also flag appeared of and uniform practice that was known tion; within a train there was advancing whenever company, to notice to on either side, give rods of the crossing eighty at that point, its by exhibiting, approach public a red if it if was to was white flag stop, flag neither, There was nor to without pass flag flag- stopping. thus the at the which was man practice, crossing; of the traveler, for the security converted adopted destruction. for his this occasion into snare to there On this state of facts, nothing justify to testator; and, imputation culpable negligence to warrant a court most there nothing manifestly, the interven- law, as matter without guilt adjudging tion of jury. aof we are nonsuit,
In propriety legally determining the truth of the facts which bound to assume testimony to conduced their of the prove, though legitimately plaintiff the defendant’s be controverted witnesses. correctness Railroad Com and Harlem v. The New Haven (Colegrove 3 Lyon, Merritt Barb., 110.) 20 492; N. Y., panies, Tiffany—Yol. VIII. Eketst v. Httdsoh River Railroad
.Opinion Court,per of the Portee, of the to appropriate province deduce jury inferences and to fact, weigh doubtful evidence. conflicting The testator was lawfully upon public highway. he had to use it was as as that right perfect defend- it. In the exercise of ant cross he did legal privilege others with no injury, expose charged duty defendants exercised extraordinary vigilance. theirs, to human life, imminently perilous agencies they under a them correlative use with the obligation of care. As the was nevér highway danger- highest degree made it so their ous, they by driving except engines never crossed it across without some it, degree law wayfarer, jeopardy provided security the defendants citizen, by protection requiring whenever their give special public warning, engines the crossing. approached of Rensselaer their own rights people high- are not subordinate to those of
ways railroad-company. If the traveler is warned engine-by or if other means he is made aware customary signals, its it is his to avoid himself to exposing proximity, If he advances on the with no cars open highway, injury. and no indications of their either view, approach, by sig- *16 he is at to nal or otherwise, without liberty pursue way, of of to a breach incurring imputation wrong-doer. The condition of the to redress for a of right wrong only be free this from is, description party aggrieved and he is not with such negligence; chargeable culpable fail unless he to exercise care and ordinary vigi- negligence, of which he There has lance to avoid injury complains. of as to what some judicial opinion been diversity ordinary demand a a care and of state of party, given vigilance is uniform that-this which to standard, facts; but, has of been often too plaintiff, test right adjudged further to discussion. be open and rule is of simple, practical, easy application. “ this court as. when case was is,” said, The “ a a it on former what would occasion, majority before v, River Hudson Court, per Poster, under like circum have done intelligence of common men “ skill Ordinary care, Howard, 2” (24 108.) stances as men skill care, a diligence, snch is degree diligence, under circumstances, similar usually ordinary prudence, Penn., Lynn, 512.) (Brown employ.” common would care which men of prudence degree with in a case must be determined given observe likely be An attendant circumstances. injury by all the reference aof i/n motion would necessarily grave an engine but at a distance of rods character; eighty serious harmless the rail be as as wayfarer would crossing, unusual in to con- drives. It is not argument over an when it with occurs, such found the seriousness of injury, to assume of its occurrence, the probability is not is demanded when engine same vigilance degree it is seen in or when vision, of sound within range of its approach. or close public given warning proximity, which ordinary prudence sug- measure precaution is in due danger. proportion probability gests a train is or to be close at dis- hand, When seen known man would until the but stand creet danger stop past; in front of a no with reason to public crossing, waiting is an that there within mile, believe quarter overcautious would seem to timidity, indicate such all most men On men others, puerile. subjects, their and do not to childish exercise reason, yield apprehen- or unloaded When of distant draw guns. they sions engines no near railway crossing, flagman gives warning, or sound indicates the sign presence assume that safely cross, proceed they may their in such a If, case, way. engine, quietly muffled them too bell, suddenly escape, rushes upon *17 due to assured safety by is those who their wrong falsely usual withholding warning. a rail- citizen -on who, public highway, approaches of a indication can neither see nor hear
way any is not in law with negligence, moving chargeable to make the there no car near assuming sufficiently 28 Ebnst 'v. Riveb Hudson Railboad Co. Court,per of the Portee, v. New (Newson York Central R. R. crossing dangerous. Johnson 29 N. v. Hudson River 390; R. R. Co., Y., Co., Avenue 20 v. R. R. 15 74; Eighth id., Hegan Co., id., 383; Smith, 78; 1 E. D. v. Gordon v. Curtis, Grand St. Harper 550; R. R. R. v. Co., Barb., Pennsylvania R. Co. Ogier, In the case first 60, Penn., 72.) cited, Judge Johnson, of the who delivered stated the rule court, opinion thus: “ The law never hold it in will one to act imprudent any that another in his conduct will act presumption in accordance with the and duties of In both.” the case rights of Gordon The Grand St. R. R. Co., Judge Brown traced the rule to the reason on which it was founded. “ “ cannot be an of such act. says, Negligence,” predicated Care that there be avoiding danger would implies is, all to create a prudént sense persons, something if the circumstances are for, not such as would danger; put and cautious prudent omission person upon guard, than to exercise more attention is not the ordinary negli which contributes to an In accident.” the case last gence the effect cited, court, omission to considering on the of due give customary signals, care “ used A plaintiff, equally explicit. defendant language cannot one want impute vigilance injured by act, if that want of were the very conse negligence, vigilance of an omission part defendant.” duty quence the defendants not case, only In the misled the present at the in accord- testator by exhibiting flag crossing, with the custom when ance uniform but near, neither also by highway illegally, approaching sounding nor the bell advanced. This whistle ringing enacted an act defiance of statute, open public It was a traveler. breach protection flagrant whose to the stock- safety jeopardized, passengers, whose and to the holders, testator, property imperiled, life it Its direct whose was to him tendency exposed. put off his to disarm his and to a false guard, vigilance, produce To transfer the security. sense blame him, at to screen victim. wrong-doer expense *18 Railboad Riveb Hubs Ebxst on Court, per Porter, who deliberately to favor those of the law not the policy the courts it the nor is violate its mandates, or to guilt invent excuses for palliate wrong-doers, life for the Our statutes protection homicide. reckless and defied, are broken and when they are to be obeyed; with- invaded blame, to be is not' by imputing responsibility for the him sake death, shielding who suffers out proof, inflict it. those who have been sworn.
In this case, parties inculpated are to but we could not confront them; course, Ernst, the ordinary in the of the evidence, by him light judge man of busi- human action. He was rules which govern full middle and in the in the possession life, ness, vigor and of character, a man of He was family faculties. motive He had no and of apparent judgment. experience his life. He to make a wanton sacrifice or inducement this occasion, If, of humanity. instincts had the ordinary left he not to have done, which he did ought anything in the to have he done, undone anything ought of nineteen seconds. interval brief north before he drove he should have looked It said which the defendant, by the street, violating down into a cul-de-sao to the traveler. could convert statute, he In his horses what did. turning That precisely into Rensselaer street, around to drive Broadway faced to the north thus west, commanding necessarily for a distance of track front some directly view of He did not see reason cars, rods. simple twenty still not there. were behind They hill, that they rods northeast of the crossing. and nearly sixty at a rate of but started is claimed high speed; down that he he went walk; started is, proof and that he did not on a slow street trot, quicken Rensselaer he was beckoned as he until, approached his gait him at which was hasten on ferry-boat, .waiting the landing. the look-out for that he have been on
It is also said should a train at the flag, uniformly displayed *19 Erkst v. Hudson River Railroad Co. J. Court, per Porter, was near. He did look, he saw that thel’e was no flag; the, was a direct assurance defendant that there was no on engine either side within a advancing of a quarter mile. He was forewarned of no and it approaching danger; was not to be under such expected, that he circumstances, should be forearmed with extraordinary vigilance. is plaintiff with the fact that reproached her husband
had a shawl round his neck. It is the ordinary precaution, aon cold winter traveler who has one morning, every to and it was no wear, more a breach of to this railroad duty than it would have if he company, been had aworn fur cap or a second overcoat.
It is claimed that he should have listened for the whistle and the bell. He did and the fact that neither ; awas further sounded, assurance that defendant there in motion rods within engine- eighty crossing.
It is also claimed that he have should stood "his up He owed no such sleigh. to the defendant. It would more absurd to hold scarcely footman should climb a tree or mount a fence before to assure himself crossing, that the was not company law, breaking by sending without run to over travelers on signals, public highway.
It is insisted that he looked before to have him, ought both on sides as he advanced. He for he did, proved have been man of clear and he could avoid so vision, He his looking, except by sitting closing eyes. of view was bottom his and, course, range sleigh, essentially limited; or could not that he did not but to say in direct would be see whatever was within range, idle it would be to as would be hostility proof. the center of State assume one who down driving both sides of cannót see that there are street, buildings cannot see both river Hudson pilot way—or his head turning shores of the in front of without river him, and forth in the wheel-house. back who was man have It is said that he observed should SI Hudson River Court, per Opinion of the Porter, side of the track. He Mm ferry beckoning in front of Mm unless horses partially doubtless did, that he is reasonable assume view; obstructed him as others did, hurry urging understood it, the boat. *20 an inflexible of that he was rule bound, claimed
It is to and understand two hear who persons to to see, law, and the from the other station-house, from the one hallooed; no There is between such them, as was passing store, and no its we see reason for artificial of presumption, rule to law of evi- were' if we liberty change adoption, a be an intendment on It arbitrary legal would pure dence. or truth to without reason commend it. of fact, question of to invent rules authority purpose have no We It of fact for the question wrong-doers. sMelding and heard saw these men. His the testator whether jury, did a lat- and his attire not favor winter advanced position that he did not hear said, is obvious what they view. It eral no one were else; heard by they speaking for was ¡Neither of sides street. opposite simultaneously him if and Ms attention name; called directed, them to movement of his be, horses, itas naturally in to front them, descent ferry-boat directly the steep the men to assumed that were each speaking probably an incident occurrence in across street, ordinary other It is that he quite too, heard probable, country village. the rush of all this occurred simultaneously the fatal collision. seconds His horses witMn few were one who full headway; every under accustomed to drive knows even difficulty controlling single in of an brought suddenly presence horse, engine, rate at the miles forty an upon-Mm hour. It is rushing horses undisputed proved frightened; sheered that he southwardly strug- rein them back. The ineffectually, evidence gled, cause of death establishes in the defendant’s adequate affords warrant for testator wrong.' imputing in that wrong. guilt complicity v. Hudson River Railroad -.[March, Court,per Porter, Wright The comments made by Judge proof, form which it assumed on a grossly exaggerated previous have still more trial, force their controlling application the evidence as now when the most presented, important then defendant is abandoned. portion given by “ It is doubtful from the said learned evidence,” judge, at the time the whether, “ signals occurred, hallooing had not near the deceased so the track that it approached his horses short even if he had impossible stop it, heard and understood the warnings cars. This to have for, jury; these, the fact should given any warnings significance, have that it was clearly appeared power, heeding to avoid the collision. them, So, also, signals were, understood bystanders. differently by hallooing *21 another to come on One meant to off; they keep thought at the did not understand their while others boat; meaning all. transaction have been embraced The whole must a and and within few seconds of the time; hallooing of the even if observed the gesticulations bystanders, were well calculated confuse Those who deceased, him. did not made the motions understand each other. deceased for the was bound then on the of ferry-boat, point hailed to and was come on. The pro- leaving, hallooing ceeded from different no bell or points. whistle, Hearing the no decedent and well have observing flagman, might train that no and that concluded the approaching, to hasten him toward the It is fair to boat. hallooing that he did not hear the words as the wit- spoken, presume did not hear what was each nesses said other. At all I think was whether events, jury, the and did not understand outcries invitations to signals and if hasten to the he did so understand ferry-boat; them, I then with learned who delivered the agree judge of the court in case this on the former that opinion hearing, him were calculated to induce to do what he “ just did disarm of do, might naturally prudent sus- person from another danger approaching picion quarter.” v. Hudson River Railroad .Ernst Court, per of the Portes, In a same lucid and subsequent portion able opin- he adds: ion, “ hadHe to assume that, their right propelling cars, act defendants would that trains appropriate care; would that the approach usual crossing proper speed; would be approach signal' seasonably given; train would be attentive and managers vigilant; at his be flagman post guard trains the arrival of stop. intending Ordinary dictated he should so have conducted scarcely prudence himself as to acts culpable omissions against protect defendants’ duty employés, train propelling and across a station, cars known crowded past thorough- at the miles an fare, speed forty hour, no bell, ringing no sounding whistle, look-out, disregarding having no to warn of flagman See- impending danger. no none of usual ing flagman, hearing signals aof it was not train, unreasonable or approach imprudent to conclude that no train was conse- approaching, there would be over the quently danger track. passing of a Besides, tendency neglect employés notice company give proper the deceased to cause less attentive than he other- He would have been. was, by
wise of their negligence in a off thrown degree employés, guard, induced to *22 cross the track no attempt apprehending danger. irresistible that is he would not presumption have taken a if he life, toward had been step hazarding made aware, the usual of the of the signals, proximity It train. is by that he did not see means clear the no train after getting but of the too station-house, late, west the excitement the of to have moment, and confusion so controlled his avoided the collision.” as to have horses all claim other dernier defenses appellant, fail- of the testator guilty" culpable is, negligence, ing, the rumble on for the hearing not of listening rails, reason he had no which expect, train which gave That did hear it not of its time to approach. signal Tiffany—Vol. VHL Hudson River Railroad Court, per Porter, the do not is so obvious that defendants collision, the
escape claim that he to have but insist did; ought heard of it, and his failure to do a breach so was to the company.
This is incidental founded the expressed theory opinions two of the this train the distance witnesses, under actual have been the circumstances and might heard, the but intervening obstructions, general ques- tion how far it to hear a train might possible approaching, in violation of law. when the omitting customary signals actual of them Neither knowledge professed speak or and their different. estimates were observation, widely or at distance of one One be detected thought might two and the other that would not be miles, audible, whistle, at a of or distance 'seven rods. be, eight It on such is obvious that question, opinions, speculative rise to the evidence. distance scarcely grade train can be without heard, sig- such circumstances, must aon nals, great variety depend rails, the structure condition of particular wind- the direct or firmness of the the size of ties, course of the the condition of track, atmosphere, ing off of steam, direction and force of the wind, shutting rails, line of the of the listener proximity the acuteness of observer’s of other prevalence sounds, or elevation vicinity hearing, depression day the hour night, woods valleys, hills, hum and bustle or the silence of the country, comparative factories and steamboats, life,- vicinity city on the general question, works. Mere public speculation like conditions, and other without reference to these as matter fact, idle illusory. proved, plainly number witnesses present such though under more favorable circumstances each this occasion, *23 the ear of the it than the testator, ferry- practiced hearing did the the of trains, listened who daily approach man, hun- within three until the the sound not catch engine and Van Hunter Ten Traver, Eyck, dred feet; Taylor, Hudson River Railroad Court, per the of Porter, did not hear it at until itas rushed Denburgh all, down just over the the of Ernst did not hear it horses until crossing; were close and at ice the Brown upon track; house, the did not hear it until the his the wagon rails, within less than a hundred feet of him. engine It was because of train is approach railway stealthy is and because the sound imperceptible, not dis- readily from associated tinguishable others with no to that, danger, secure traveler at once needless against apprehension was, needless mandate exposure, to statutory given every such in this no company State, approach public highway with an without and distinctive engine, public sig- nals of for a distance of danger rods before eighty passing such crossing. is and absolute. duty plain company
violates does so at its If its are peril. agents faithless, should dismiss them. If its officers choose a law disobey of human or to protection tolerate its life, violation subordinate their is the hands of agents, remedy stockholders, those will who our selecting respect When the act results in the death illegal statutes. public must unless he has respond, been citizen, company of a which contributed to breach duty destruc- guilty of such breach He is not tion. guilty he absence indication assumes, any contrary, law, is obeys company engine within distance advancing crossing, eighty rods, its If he is deceived approach. without public signals is not the unlawful omission signals, wrong his, act of the but theirs. does how- company not, illegal risk of him if he encountering ever, crossing, justify or is sees or hears otherwise approach engine, to avoid in season In its peril. notified presence and the culpable company negligence, case guilty death. But responsibility causing relieved did, the victim defense wrong-doer it is no though notified of and was or hear its not see have in time avoid seen collision, might *24 River Hudson v. Court,per of Foster, or heard if had exercised a he it, higher degree vigilance, and had a violation of the instead of law, foreseen relying its observance. a has counte- Such received upon theory in in a individual nance few instances opinions judges. It has in the diei/um of the and able support accomplished delivered in who this cause jurist prevailing opinion a former occasion. This not then however, was question, in nor involved court, decision. upon by passed On the then whether proof was, presented, question rode a who hundred one was nearly culpably negligent, full an knew it feet in view of who fifty approaching in it, be who due, though persisted driving against in to avoid of its season notified four persons presence the danger.
The usual favor' the theory is, argument at are trains constantly every passing repassing not admonished of this we are crossing. Certainly, railway man of ordinary the constant bells; ringing every (cid:127) If otherwise. ten knows the fact observation regular run render trains over day given highway, It free is then. pass, only unsafe -they in the minutes, at most, twenty except, danger' and the traveler is hours; each twenty-four aggregate, if the intervals, those momentary exposure 'safe against If it not do bell. will law and rings obeys company whom cause complaint wayfarer against has that, In case, such language misleads. it voluntarily “Aman is under is appropriate: Justice Chief Beardslet toward and circumspect wrong to be cautious no obligation Denio, R. Co. Munger, 266.) R. doer.” (Tonawanda is on a a traveler public thoroughfare true that is not if does matter of law, negligence, culpable guilty the .track before and down look up to listen, not stop in direct conflict The proposition over crossing. goes in other courts. this and adjudications with repeated depends culpable, omission such Whether case. each particular and circumstances of facts plaint- in which proof of cases, is a class There *25 Eenst v. Hudson Riveb Co. Court, Opinion per Portee, J. clear whenever this
iff’s is negligence undisputed; a is matter A nonsuit of who sees legal right. party appears and chooses to take the risk hears approaching engine, than before rather its it, of await forfeits crossing passage, to under it redress; all claim such is not and, circumstances, but to the familiar courts only right apply rule—volenti But there is another non class of injuria. fit is which it well settled that no cases, we have equally to for an authority negligence omis- impute deceased, sion which be attributed to the may fairly very wrong in his death. resulting
In the case Brown v. The New York Central R. R. Co., decided at the last June we held no Term, culpable it was established, negligence though proved by driver of the coach demolished that he by did collision, not look in the direction the cars were approaching until his horses were on the the usual signal danger advanced to the being given crossing; this, it in evidence if he had appeared that, looked though before, have seen them in season to avoid the collision. Y.,N. (32 597.)
The doctrine case was reaffirmed unanimously a Eke state of at the facts, last December Term of this court. v. New York Central R. R. Co.) (Stillwell earHer case of In the v. The Hudson River Megrath R. R. “ same rule was announced. It is not Co., clearly always (cid:127)“ said the a cross railroad track court, negligence,” times train is not or cannot when due, reasonably expected track nor cross railroad without pass; looking of its is no of a signal given ringing also, bell or in the (32 Barb., So, otherwise.” case of 147.) Warren v. The R. R. it held Fitchburgh Co., was Court State which undue Massachusetts, Supreme of intendment on this rigor supposed prevail subject, a railroad see track, without looking if train is not conclusive want coming, care. proof Allen, (8 227.)
In the case R. Fero v. The State Line R. & Co., Buffalo v. Hudson River Railroad Court, Pokier, per claimed that the could not recover plaintiff for the as it was that he could have averted apparent readily injury, the exercise this but court held care; that, greater “ if of no he was mere fact guilty culpable negligence, have not excuse the been more might vigilant.will nor defendants, plaintiff act of deprive wrongful N. he has suffered.” (22 Y., redress 213.) injury *26 the was free from whether question plaintiff negli- of is one fact cases this of to be description, gence, ordinary determined the under and by instructions, jury, appropriate in- of the to the courts. Occasional subject revisory power is clear of misconduct so and where the occur, stances proof decisive that the to of are bound pass question judges is a to as matter of mistake, however, law. negligence in these time, that the decisions from time to suppose made, involve any two of each classes conflict with or. cases, other, Where the from the rules of law. question settled departure fair-minded men may on a of facts, arises state on which issue is conclusions, properly arrive rationally opposite sometimes happens submitted to the Where, jury.. to and is traceable clear unques- cases, injury exceptional is the of plain tionable misconduct part plaintiff, the facts without the law to court apply In the there is case, á present intervention jury. to extend so often made, excep- renewal of attempt It is our all of cases. province uphold rule to classes tional it to be and We wise alter believe it. law, have no otherwise, authority we if deemed we but, just; the inno- from restrained making should be it. We to subvert own our repeated adjudications, by vation not only proposed, maxim on our elementary that time-honored but by non is founded: Ad questionem system jurisprudence facti non legis jwrctr- respondent quesUonem respondentjudices—ad tores. claim- of the as to the party of this court right views free from he was whether redress, have
ing have been determined, jury, ordinarily, negligence clearness emphasis. repeatedly expressed great Railroad River Hudson Ernst v. Porter, Court, per Company, of Ireland v. Oswego In case “ sel- very The fact said: negligence Judge Johnson that it evidence, direct such established by positive dom pro- the consideration from jury can taken it On the contrary, of law. matter nounced upon of fact, an inference to be deduced as almost always the testimony, disclosed and circumstances facts several have matter issue relation their connection after In such considered. their force and weight traced, been intervention made cannot be without the inference cases, in their state- all the witnesses agree although jury, consistent which is be but one statement or there ments, fact, from their nature, very Presumptions throughout. like science, presumptions are not strictly objects legal at the time That exercised law. the care plaintiff were both defendant, and the injury, negligence cannot admit of determine, any jury questions *27 Kern., doubt.” (3 533.) Central Railroad v. The New York
In case of Keller the court, of Mason delivered opinion Judge Company, of rule, and after exposition pro- citing foregoing ceeded to say: “ in is determined constitutes such cases, What negligence mind from the facts and circumstances inference of the minds are constituted, case; differently and, of facts and circumstances will state inference given I admit that the facts be so be the may same. always inference of irre- that this decided, negligence clear such case it is and in the duty sistible, every judge be inference to drawn facts, but when decide; in rule doubtful, only are any. proper from them, degree under matter to the the whole jury proper submit is, How., (26 177.) instruction.” in the case views were by Judge
Similar expressed Denio Avenue Railroad v. The Company, Eighth Hagan Rensselaer in that Bernhardt v. The by Judge Selden said the latter, Company. Saratoga all his which mark judicial precision perspicuity v. Hudson River Railroad Court, per Porter, as a opinions, that, “although, rule, general questions of'neg- to the no doubt ligence cases belong exclusively jury, may arise which the would be so clear proof of negligence the court irresistible, would be assuming, justified without to the submitting question jury, negligence At established. the same it is consider- time, obvious, the nature of the that such instances must be ing question, rare. If there is conflict in the evidence to estab- any going lish of the circumstances which the any it must left be If there are depends, inferences jury. to be drawn from the which are not certain and incon- proof are for the If it trovertible, jury. necessary ' as in most a man determine, cases what is, ordinary care and to do under the circum- likely prudence stances itas more or proved, this, involving, generally must, less can be settled How., of-conjecture, only by jury.” (23 168.) defendants different rule, struggle inaugurate
and to induce the courts to resort to artificial refinements for
in those
excusable
protection
is,
wrong-doers,
perhaps,
who are
restraint. There is an unfor-
impatient
legislative
tunate and
human life as of
regard
growing tendency
with the
com-
secondary importance,
comparison
objects
mercial and
The aid of the courts is
corporate enterprise.
invoked to annul
indirection the force of
laws.
general
in the
ratio
Suits
appeals multiply
constantly increasing
could tend more to encour-
reckless
injuries,
nothing
*28
than this
of
from civil
.on the
theory
immunity
damages,
age
that a
over whom an
matter of law,
party,
assumption,
for not
out -of the
is
is
driven,
culpable
keeping
way,
the
whether' he was
of
really guilty
negli-
question,
a
fact for
is not one of
jury.
gence,
even from
as is sometimes
the
intimated,
If
be true,
on
false verdicts are
rendered
bench,
occasionally
ques-
like
the
is to set them
aside,
tions
to
this,
remedy
the
Even
the cases
the
of
jury.
among
usurp
prerogative
as to
a
there
nonsuit,
which have been held so plain
justify
themselves dis-
in
the
have not
have been few which
judges
v. Hudson Hivrr
Hunt,
J.
Court, per
and the
occurs to the
inquiry naturally
mind, whether
agreed;
than
less liable
on
of
jurors
err,
we are
questions
pure fact,
of
affairs
life. Our
is
framed
ordinary
law
pertaining
on
such
citizen can
theory that,
questions,
upon
rely
more
concurrent
with
twelve
judgment
security
vote of a divided
than on
bench. Una-
jurors
majority
in our decisions on
is not
law.
questions
nimity
required
is
with
otherwise
jurors charged
determining
and such issues should not be
withheld from
fact;
issues
so,
unless the
usual
evidence leads
arbiters,
to one
clearly
there is no room for honest
result that
difference between
A
men.
nonsuit should
be
intelligent
upright
always
where
so clear as to warrant the
granted
proof
assump-
if the
faith, that,
submitted
tion,
good
find that the
culpable
jury,
negligence
contributed to the
But
had
we have
occasion,
plaintiff
injury.
hear nonsuits of this kind
novel
recently,
justified
fact
that unless the
be determined
one way by
ground,
be
the other
be sure to
determined
will
jury.
judge,
on mere
of fact
correctness
judicial opinions
questions
when we find
distrusted,
them
well be
confessedly
may
to the common sense of mankind.
opposed
and a
trial
reversed,
should
new
ordered.
judgment
the 29th
On
1855,
day
December,
Henry
Hunt,
his horses before lumber
came
while
sleigh,
Ernst,
driving
with the
cars,
into collision
defendants’
high-
in the
in the
Rensselaer. The
Bath,
village
county
way
the executrix
said Ernst. The case has
plaintiff
the first trial the
tried three
times. Upon
plaintiff
been
aside
General Term
This
was set
nonsuit
nonsuited.
trial
third
and new
granted. (
In neces- at the this decision circuit, judge making and in its decided that, testimony sarily given, upon favorable plaintiff aspect, conceding .most for benefit of all doubtful verdict or disputed questions, have but would have could not been sustained, plaintiff Court. If set aside been upon Supreme presentation found to be the result of evidence, shall be such in must if a but affirmed; jury finding judgment could then the favor of the' have been sustained, plaintiff must be reversed. judgment, of fact which it will be necessary
The only questions of the defendants; are first, examine those negligence: respects of the deceased. many next, proof (cid:127) in the former as recited different from trial, E, and .that court D. this by Justice given opinion Smith, on the not, therefore, controlling present questions. opinion entertain I the defendants’ -On the negligence, on which was evidence jury no doubt that there the defend- this against finding point been justified have on or off time, whether ants. speed the whistle blown, required" bell was rung whether had been one where absence of flagman, the statute, failure of the engineer be stationed, accustomed:to of Waltemyre left, presence look ahead to unauthorized, questions authorized whether engine, afforded, a fair exercise room the jury which would have *30 Co. Ernst River v. Hudson per Court, J. Opinion the Hunt, have and their decision would not been of their judgment, in favor of the if it had been plaintiff. disturbed the other arises however, upon The principal question, the deceased, part concurring negligence point, The facts to the proved, injury. produce contributing to be, infer them have the right the jury all doubtful favor their points exercising power finding be stated as follows: plaintiff, may his deceased drove On the empty day into the a of horses, Bath, pair village sleigh, not cross the boat was ferry Albany. intending in front of the tavern and he fastened his horses ready, In a that the boat was went in. short time notice was given their his associates over track crossed ready, sleighs, them near track to assist the one of remaining deceased, the deceased came out, the others boat; reaching sat of his unhitched his bottom lumber horses, a few turned drove drove northerly feet, westwardly, sleigh, one hundred twelve feet toward the when he ferry when his reached the railroad horses were struck by track, and cars horses southwardly, killed, going so he died within a himself few badly injured days As he drove from the he northwardly thereafter. hotel, the railroad a distance of rods. After could see thirty up toward the a short dis- westwardly turning ferry going view of road cut off northerly tance, by a about feet in fourteen station-house, building extending As the deceased easterly westerly. direction approached he was on moderate he train, driving trot; shouted man three times store standing steps the cars were track, to which coming, adjoining Whether attention. he heard or understood, apparent paid One railroad hands east does appear. made motions intended maker as
track him, signals and one of own on the west comrades, stop, Simmons, made him to intended effect the track, side signs trot moderate drove on at same The deceased purpose. testi- as one witness till reached the Hudson River Railroad Court, per Hunt, *31 a miles was running forty fled, speed per hour, the train over rods in about thirty would carry eight and over rods in and a half about seconds, fifty fourteen and The deceased a seconds. was one-sixteenth passer frequent and it had been the at this established custom there place, a some that a for white with should years flagman, flag, sig- nal the of cars not intended to and with a stop, the train red was flag expected stop. are the substantial
These facts now bearing upon point under in this consideration. cases of Wilds court, v. The Hudson R. R. Co. N. Brown (29 Y., N. 315); v. Y. Central Newson R. R. v. The (32 id., Same 597); (29 id., & Steeves v. 383); Syracuse Co. Oswego (18 id., and in of North R. 422); Pa. R. Co. v. Hil Pennsylvania, man contain the recent (49 Pa., of the law 60), expositions now to be examined. case of that Steeves decides gross in a aat railroad negligence person injured crossing, by train, will defeat his action for passing notwith damages, the omission of those the train to standing running ring , bell or sound the law. In that whistle, required by case, as the facts are in stated there court, was opinion excuse whatever to both from nothing see injured party train; while ing for hearing approaching riding about a mile track in with the parallel view, plain seem to have closed and to have eyes ears, driven across or the track as train was approaching. An under such received the court circumstances, held' injury the result his own reckless indifference, which he could not recover the railroad whose against company train had caused it.
In the case of Newson v. Y. Central N. the find (supra), favor of was ing. jury plaintiff sustained, that the deceased drove and remained although appeared with his horses he had dangerous previous place; Ms in the with horses at the same earlier difficulty spot, part" warned the same and that he was day, flagman it and that he must remain there not dangerous, It that he was at the horses. further, appeared, Hudson River Railroad Hunt, Court, per in which the business defendants for designated by point cars, receiving gravel engaged, defendants not court held that it was plain duty it did lie and that not him to there, while expose danger that he was going with them to say guilty negligence court say, necessary, there. absolutely near to his run so have been cars should defendant’s a clear act held that such running horses, this I think was liable. for which company negligence, *32 of the deceased case holds the negligence question and is mixed with, not an isolated but depends question, and in some the manner, its solution, upon for question the defendant’s negligence. degree C. was an action v. The N. Y. Brown R. R. (supra) sus to recover injuries the plaintiff brought by damages defendant’s cars collision of the tained by plaintiff, by she The view in which was with passenger. stage-coach much obstructed houses trees that the track so not of Albion could be seen train village approaching a few the track. within rods of until the traveler was his heard the train driver horses. approaching stopped it he started toward when a As was up passing, also else, came car, by. He single separate anything till it waited started stopped, again passed, again up. had reached the when he rails, horses now saw still other His from the same He direction. cars his approaching whipped the intention before horses with reached they his hind wheels were but coach him, struck, upset and received. cars plaintiff’s injuries separate following result of what is each other so called a run rapidly, one car out of the switch, purpose leaving ning The defendants claimed that, upon train. undisputed and that driver she could facts, plaintiff’s negligent facts it The court held that these was not upon not recover. to leave whether driver was say jury error he could for them to whether that it was say negligent; under than that, have up; drawn back safely whipped more him in who jeopardy circumstances, party put such y. Hudson River Railroad Court, per Hurt, if and not responsible, he, mistook the safest means of On the escape. in not question negligence seen having the cars the court that that approaching, was also for say He had seen a train jury. and had waited for pass it. He had also waited for a car to His single followed pass. eye “ them, bound to that more suspect were coming, and to be on the look-out for them ? I think it is too asking much to that it was say aas matter of negligence, law, have anticipated following. signals of the train had told him where the but danger was, gave warning unsignaled follow.” This danger authority also connects the plaintiff’s negligence acts and omissions of the defendants and their agents. n Inthe case of that the Wilds, deceased appeared drove his horses a railroad where it crossed the street, bell and the whistle sounded; stood rang center flagman of the street some hallooed to waving flag; persons him, tried to other’s seize his horses. He saw stop but raised coming, whip attempted pass *33 it. He and before was failed, killed. This court as a ruled, matter of that no action would lie law, his administratrix the railroad on the that the against company, ground exercise discretion the deceased ordinary would prudence have advance discovered would train, have hini from effectually preserved danger.
The case decides that it is the of a Pennsylvania traveler railroad to look approaching along train, line of the railroad and see if is and that any coming, if he failed to take such it was more than evi- precaution dence and that negligence—it itself, negligence should have been so jury charged. as I in have collated facts,
Did them, present case, of. absence that exhibit necessarily ordinary prudence there that discretion, or was such room for question have left to the determination should been jury? case fact for the is one of jury. usually negligence question constitutes is on What Ev., negligence Starkie 973.) (2 decide. on of fact for (Ang. Car., jury pure 47 River v. Hudson Court, per Hunt, of tlie 11; Greenl. on &c.; Bail., 7, 16, Story Ev., 48.) § § §§ it does not where is follow, And there necessarily, the court decide the evidence, conflict issue. R. R. Co., N. v. Oswego 533; Y., (Ireland Oldfield H. R. Co., What constitutes Y. N. id., 310.) negli case is in a for the particular generally question jury, gence because want of and not court, negligence ordinary These are in con supra.) Penn., authorities care. (49 hold those which certain the courts that, flict with cases, as one of where evidence so law, rule the question shows the want and discretion that there prudence clearly can nothing jury pass upon. Assuming the conduct occasion deceased, question, his there are still some consider indicated negligence part, noticed. first is ations to be when the deceased this: from the he started turned west northerly tavern, toward the have covered the wardly, eye for a far track distance rods. This was as as he thirty and I think see he bound to could upon railroad, I this As this have space. stated, survey already at miles would have this forty hour, over per passed moving and one-half rods seconds. I think it thirty eight Bow, whether he had not was for obser jury say found, by the track was so that he could vation, clear, safely pass the train came over this it, over come space over him while covered passing space and where view the road was obstructed. house, station at the would be say whether, quite competent jury this rate which inference moderate going, might *34 and the been thus drawn, reached, have conclusion fairly want of attention that not his own produced that it was I think it should have been left to them, upon catastrophe. that view. n whether it consideration arises upon point, Another or was the deceased understood, certain entirely shouts, to have understood, meaning bound made him. The ferry-boat and were motions gestures had reached and were it, his comrades detaining was ready, u. Hudson River per Court, J". Hunt, for and his the river him, was the idea prominent in his One mind. was on the man west side which was nearest to the and ferry, making gestures motions, and others the east side also and upon shouting making motions. that the deceased have possible misinter- may these attentions, them preted understood designed him on to reach hurry with the boat, too, exercise this, and discretion. ordinary prudence A third consideration, which affects I those have and is to be considered in already mentioned, connection with was the absence of a when the them, deceased flagman, to cross the A man had track. attempted been sta- usually tioned to warn off there, travelers when there flag, an train. The deceased was danger approaching to travel the accustomed road and to cross at many years then, this How of the deceased point. far, knowledge extended as to this whether he looked for the practice, flag," it exhibited relied and, its finding usual, absence upon as evidence that the track and that he could clear, safely whether it was in him discreet cross, prudent rely its whether was still bound to absence, exercise upon and to take other other means to himself precautions, satisfy no train was at whether hand, his construction of the and motions was to be affected this shouts, gestures and his absence its effect flag knowledge it, his examination I road, were, think, questions have that should been submitted Without jury. an intimation should or would jury have intending found accordance these suggestions, intending observe the laid down Wilds and Steeves here- principles think tofore I was made cited, error withdrawing case from the consideration of the There entirely jury. should be reversal of the of the General Term, judgment and a trial new ordered.
All the judges concurring, trial
Judgment reversed new ordered.