The plaintiff was entitled to recover (if at all) for the time lost in consequence of the injury received, and to show what it would have been worth to him. What he was earning at his trade at the time of and immediately preceding the injury tended to show the value of his labor, and was therefore proper for the consideration of the jury in determining the value of the plaintiff's time lost by the injury.
The motion for a nonsuit was based upon the grounds, First, that there was no evidence of negligence of the defendant or its servants. Second, that the evidence showed that the plaintiff was negligent, and that such negligence contributed to the injury. The plaintiff's evidence tended to show an omission to ring the bell or to sound the whistle upon the engine that struck the plaintiff, as it approached and arrived at the crossing. This evidence was a sufficient answer to
the first ground. The second ground presents a more difficult question. The plaintiff was crossing the track on foot; and it would seem that the exercise of proper care on his part to protect himself would have enabled him to keep out of the way of the engine. For this purpose it was his duty to be vigilant, irrespective of whether a bell was ringing or whistle sounding, to use his ears in listening and his eyes in looking, to enable him to avoid danger. (Ernst v. The Hudson River Railroad,
December term, 1868, of this court.) It is necessary to examine the evidence, to see whether it established any omission of the above duty by the plaintiff. The proof showed that, at the crossing in question, the defendant had five tracks. That upon two of the tracks upon the side upon which the plaintiff approached the crossing, and in close proximity thereto, empty box cars were standing, that prevented a view along the third track towards the east beyond a distance of ten feet, until after passing the box cars standing on the second track. That, as the plaintiff approached the crossing, a train of freight cars passed to the east with the bell ringing. That the plaintiff waited until this train had passed, and stepped forward to cross, hearing nothing approaching from the east. That, as he stepped upon the third track, he looked west along the track, and seeing nothing approaching, immediately looked east, and at that instant was struck by the engine. The plaintiff used his eyes as far as he could; and such use would undoubtedly have protected him, had not his view to the east been obstructed by the box cars standing upon the track, until he had gone so far that he could not extricate himself from the danger. The noise of the freight train may have prevented his hearing the approaching engine; and if he heard it, he undoubtedly thought the noise caused by the freight train. The negligence of the plaintiff was not so conclusively established as to justify the judge in withholding the question from the jury. There was, therefore, no error in the denial of the nonsuit. The judge was right in refusing to charge, that, if they found that the bell upon the engine was ringing, as required by statute, there was no
proof of defendant's negligence. This ignored the question whether it was negligence to have the box cars standing where they were. This depended upon the inquiry, whether they were necessarily left there in the prosecution of the business of the defendant. As the law imposed upon the plaintiff, for his protection, the duty of looking along the track, an unnecessary obstruction to the view by the company constitutes negligence. The judge submitted to the jury the question whether the bell was rung, with the proper instructions; as also the question arising from the position of the box cars upon the track. The judge further charged the jury, after stating to them that the defendant was bound to keep a flagman at the State street crossing, and were not bound to keep one at road crossings in the country where there was but little travel, that the question was whether St. Joseph street (the crossing in question) was such a populous portion of the city, that it was due to the public safety, and in common prudence, in view of the high powers exercised by the company, passing with the high speed at which they run their trains, that they should keep a flagman at that point. That, if they thought it was an omission of a precaution which, in ordinary prudence and care, the company was called upon to practice, then it was negligence to omit that duty. To this portion of the charge the defendant excepted. The counsel for the defendant requested the court to charge the jury that the defendant was not bound to keep a flagman at that crossing. The court refused, and the defendant excepted. It thus appears, that the jury were instructed that they were at liberty to find the defendant guilty of negligence solely on the ground of an omission to keep a flagman at the crossing, if they were of opinion that ordinary prudence required one there, although finding that in every other respect the defendant had performed its duty; as all the other grounds upon which negligence was imputed were controverted questions of fact. The question is thus fairly presented, whether a railroad company is required by law to station a flagman at every street or road crossing where, in
the opinion of a jury, the travel is such that ordinary prudence requires it, for the purpose of warning and keeping travelers off from such crossings when trains are passing over them. This is an original question in this court, and must be determined upon principle and the analogies of the law. It has been remarked in the opinions, in some cases, that railroad companies are bound to use all possible care to prevent injury to travelers at crossings. If this be so, it is manifest that such injuries may be entirely prevented; as means might be adopted, such as would entirely prevent any person being upon the crossings, or within the reach of trains when passing. These remarks were not essential to the cases adjudicated. No case has been determined by the court upon any such principle. Railroads are authorized by statute to construct their road, and run their trains across streets and highways. The same statute provides that they shall give certain signals for the purpose of warning travelers of their approach and presence; such signals being, in the judgment of the legislature, sufficient to protect the public from injury in the use of the crossings. Keeping a flagman at the crossings, or any of them, is not required by statute; nor does the statute require the company to give warning to travelers otherwise than as therein provided. The question is, whether the common law requires the company to warn travelers of approaching trains by other and more effective means than those the statute requires. The claim that it does is based upon the maxim, that every one must so use his own as not to injure another. In applying the maxim to the present case, it must be borne in mind, that the traveler and railroad have each an equal right of way in the crossings, derived from the same authority. The former for the purpose of travel, and the latter for running its trains. A collision is somewhat dangerous to the trains, but vastly more so to the traveler. The law imposes upon both the duty of observing care to avoid them. But the care imposed upon the company is in operating its trains; in so transacting its business, in the exercise of its right of way, as not to injure others in the
exercise of their similar right, provided the latter exercise due care on their part. This relates to the mode of operating the trains, and all other things done by the company in the transaction of its business.
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The plaintiff was entitled to recover (if at all) for the time lost in consequence of the injury received, and to show what it would have been worth to him. What he was earning at his trade at the time of and immediately preceding the injury tended to show the value of his labor, and was therefore proper for the consideration of the jury in determining the value of the plaintiff's time lost by the injury.
The motion for a nonsuit was based upon the grounds, First, that there was no evidence of negligence of the defendant or its servants. Second, that the evidence showed that the plaintiff was negligent, and that such negligence contributed to the injury. The plaintiff's evidence tended to show an omission to ring the bell or to sound the whistle upon the engine that struck the plaintiff, as it approached and arrived at the crossing. This evidence was a sufficient answer to
the first ground. The second ground presents a more difficult question. The plaintiff was crossing the track on foot; and it would seem that the exercise of proper care on his part to protect himself would have enabled him to keep out of the way of the engine. For this purpose it was his duty to be vigilant, irrespective of whether a bell was ringing or whistle sounding, to use his ears in listening and his eyes in looking, to enable him to avoid danger. (Ernst v. The Hudson River Railroad,
December term, 1868, of this court.) It is necessary to examine the evidence, to see whether it established any omission of the above duty by the plaintiff. The proof showed that, at the crossing in question, the defendant had five tracks. That upon two of the tracks upon the side upon which the plaintiff approached the crossing, and in close proximity thereto, empty box cars were standing, that prevented a view along the third track towards the east beyond a distance of ten feet, until after passing the box cars standing on the second track. That, as the plaintiff approached the crossing, a train of freight cars passed to the east with the bell ringing. That the plaintiff waited until this train had passed, and stepped forward to cross, hearing nothing approaching from the east. That, as he stepped upon the third track, he looked west along the track, and seeing nothing approaching, immediately looked east, and at that instant was struck by the engine. The plaintiff used his eyes as far as he could; and such use would undoubtedly have protected him, had not his view to the east been obstructed by the box cars standing upon the track, until he had gone so far that he could not extricate himself from the danger. The noise of the freight train may have prevented his hearing the approaching engine; and if he heard it, he undoubtedly thought the noise caused by the freight train. The negligence of the plaintiff was not so conclusively established as to justify the judge in withholding the question from the jury. There was, therefore, no error in the denial of the nonsuit. The judge was right in refusing to charge, that, if they found that the bell upon the engine was ringing, as required by statute, there was no
proof of defendant's negligence. This ignored the question whether it was negligence to have the box cars standing where they were. This depended upon the inquiry, whether they were necessarily left there in the prosecution of the business of the defendant. As the law imposed upon the plaintiff, for his protection, the duty of looking along the track, an unnecessary obstruction to the view by the company constitutes negligence. The judge submitted to the jury the question whether the bell was rung, with the proper instructions; as also the question arising from the position of the box cars upon the track. The judge further charged the jury, after stating to them that the defendant was bound to keep a flagman at the State street crossing, and were not bound to keep one at road crossings in the country where there was but little travel, that the question was whether St. Joseph street (the crossing in question) was such a populous portion of the city, that it was due to the public safety, and in common prudence, in view of the high powers exercised by the company, passing with the high speed at which they run their trains, that they should keep a flagman at that point. That, if they thought it was an omission of a precaution which, in ordinary prudence and care, the company was called upon to practice, then it was negligence to omit that duty. To this portion of the charge the defendant excepted. The counsel for the defendant requested the court to charge the jury that the defendant was not bound to keep a flagman at that crossing. The court refused, and the defendant excepted. It thus appears, that the jury were instructed that they were at liberty to find the defendant guilty of negligence solely on the ground of an omission to keep a flagman at the crossing, if they were of opinion that ordinary prudence required one there, although finding that in every other respect the defendant had performed its duty; as all the other grounds upon which negligence was imputed were controverted questions of fact. The question is thus fairly presented, whether a railroad company is required by law to station a flagman at every street or road crossing where, in
the opinion of a jury, the travel is such that ordinary prudence requires it, for the purpose of warning and keeping travelers off from such crossings when trains are passing over them. This is an original question in this court, and must be determined upon principle and the analogies of the law. It has been remarked in the opinions, in some cases, that railroad companies are bound to use all possible care to prevent injury to travelers at crossings. If this be so, it is manifest that such injuries may be entirely prevented; as means might be adopted, such as would entirely prevent any person being upon the crossings, or within the reach of trains when passing. These remarks were not essential to the cases adjudicated. No case has been determined by the court upon any such principle. Railroads are authorized by statute to construct their road, and run their trains across streets and highways. The same statute provides that they shall give certain signals for the purpose of warning travelers of their approach and presence; such signals being, in the judgment of the legislature, sufficient to protect the public from injury in the use of the crossings. Keeping a flagman at the crossings, or any of them, is not required by statute; nor does the statute require the company to give warning to travelers otherwise than as therein provided. The question is, whether the common law requires the company to warn travelers of approaching trains by other and more effective means than those the statute requires. The claim that it does is based upon the maxim, that every one must so use his own as not to injure another. In applying the maxim to the present case, it must be borne in mind, that the traveler and railroad have each an equal right of way in the crossings, derived from the same authority. The former for the purpose of travel, and the latter for running its trains. A collision is somewhat dangerous to the trains, but vastly more so to the traveler. The law imposes upon both the duty of observing care to avoid them. But the care imposed upon the company is in operating its trains; in so transacting its business, in the exercise of its right of way, as not to injure others in the
exercise of their similar right, provided the latter exercise due care on their part. This relates to the mode of operating the trains, and all other things done by the company in the transaction of its business. It does not require the company to employ men to keep travelers off the track, or to serve notices upon them that trains were approaching. Should the company do this, it would relieve the traveler from all necessity of exercising care in this respect; and it would, indeed, be safe for him to go upon the track, having received no express warning. If the exertions of the flagmen were, in any particular case, inadequate to prevent injury to a traveler, upon the same principle, it might be submitted to a jury whether ordinary prudence did not require gates to be closed at certain crossings, while trains were passing, or something else done to protect the traveler; and if, in their judgment, it did, to instruct them that such omission was negligence. If the charge in the present case is sustained, I can see no limit to what is required of the company to exonerate it, upon the ground that it has been free from negligence, except it has done everything, outside of the transaction of its business, that, in the opinion of a jury, prudence required. Such is not the true application of the maxim. As above remarked, it requires such care in conducting the business of the company as will prevent injury to others in the exercise of their rights, if proper care is observed by them; but it requires nothing to be done by the company outside of such business, to give warning to travelers outside of the track. The obligation upon the company to do the latter is imposed by statute; and all that can be required of the company, in this respect, is a strict observance of the statute. It is true, that the company may employ men to keep travelers off from the crossings when trains are passing; and if they do this, it will be safe for them to run at greater speed, or in other respects different from what would be otherwise permissible; but this is a matter to be determined by the company, and cannot be imposed as a legal duty, except by the legislature. Brown v. The Central R.R. Co. (34 N.Y., 404), is cited in support of the principle contained in the charge. But that was an action by a passenger to recover for an injury received while such; and the opinion, when read in connection with the facts, gives no support to the rule contended for in the present case. Bradley v. TheBoston, c., Railroad (3 Cushing, 539), is not in conflict with the views above expressed, but, so far as applicable, accords therewith. The principle upon which Johnson v. The HudsonRiver Railroad was decided, is the same as that in the case last referred to. Both related to duties to be performed upon the train or car. Kinney v. Crocker (18 Wisconsin, 74), sustains the ruling of the judge in the present case, but I cannot concur in the reasoning of the court. That reasoning would lead to results, I think, not contemplated by the court, unless the usage referred to was of a character to become obligatory, as such, upon the road in that state; and if so, the case is not applicable in this. There is no such usage of keeping flagmen at crossings by railroads in this State, as to render it obligatory upon that ground. I have examined the other cases referred to by counsel, and fail to find the principle of the charge supported by authority. There is nothing in the point made upon the fact, that a flagman had been some time before the injury kept at the crossing in question. None was kept there at the time, and the plaintiff was aware of that fact. Besides no question arising from any such fact was submitted to the jury. The judgment should be reversed and a new trial ordered, costs to abide event.