McLennan, J.:
On the 9th day of January, 1898, the defendant was engaged in operating a double-track railroad, which extends substantially east and west in the town of Farmington, Ontario county, N. Y. Upon that day the plaintiff, the father of the decedent, was riding in a light lumber wagon- drawn by an old, gentle horse, driven by him- along a highway leading from the southwest to the northeast .across the railroad .tracks of the defendant, at an angle of about twenty-five degrees. The plaintiff and a young man were sitting upon a spring seat in the forward part of the wagon, and between them a child of the plaintiff, three and a half years old. Behind them in. the back part of the wagon, facing easterly, the plaintiff’s wife was sitting upon a couch, holding the decedent, then about eighteen months old, in her arms. As the wagon got upon the first [71]*71■or southerly track, a light engine approaching from the west came in collision with it; the decedent was thrown out and received injuries from which he died. The plaintiff’s wife was also thrown out and injured.
The action was tried upon the theory, and the learned trial justice so charged the jury, that the negligence of the plaintiff) if any, as well as the negligence of the mother, was imputable to the deceased, and that if the negligence of either contributed to the accident no recovery could be had.
Four propositions were submitted to the jury for its determination :
First. Was the defendant guilty of negligence which caused the accident ?
Second. W as the plaintiff, the father of the deceased, guilty of contributory negligence ?
Third. Was Augusta Lewin, the mother of the deceased, guilty of contributory negligence ? and
Fourth. The amount of damages.
The jury by its verdict determined each of those propositions favorably to the plaintiff.
In an action brought by the plaintiff’s wife, Augusta Lewin, to recover damages for the injuries which she sustained in the same accident, upon substantially the same evidence as is contained in this record, this court held (41 App. Div. 89), that the question of defendant’s negligence was a question of fact for the.jury. It was also held that the question of the plaintiff’s negligence in that case -(the mother of the deceased) was also a question of fact for the jury. The question of the negligencé of the plaintiff in this case, who .was driving, was not passed upon, as it was held to be immaterial because his negligence was not imputable to his wife.
Aside from the questions thus .decided,' three questions are presented for our determination by this appeal:
First. Does the evidence fairly justify the finding of the jury f hat the plaintiff was free from contributory negligence, or is such finding against the weight of evidence ?
Second. If the plaintiff was guilty of contributory negligence, is such negligence imputable to the deceased, so as to prevent a n’ecovery ?
[72]*72Third. If the death of the decedent was caused by the negligent act of the plaintiff, who as next of kin is entitled to receive the entire amount of the recovery, if any, would that, as matter of law, defeat a recovery, although such negligent act is not imputable to the deceased ? ' ■ ■
As to the plaintiff’s negligence. The accident occurred between ten and twelve o’clock on the forenoon, of a bright, clear day. The wind was blowing about seven miles an hour, from the direction from which the engine was approaching the crossing. The plaintiff was sitting upon a raised spring seat on the wagon, on the side next to the approaching train. The horse which he was driving; was old and gentle; was not afraid of the cars, was under perfect control, and was walking not faster than about two miles an hour. There was nothing to divert the plaintiff’s attention, and when at a point about 560 feet distant from the place of the accident, his wife called his attention to the fact that they were approaching the crossing, and cautioned, him to look put for the same. From the' highway west the defendant’s. tracks extend in a straight line for .a distance of 1,000 feet, and then curve only one degree. The highway is on substantially the same grade as the railroad tracks and the surrounding country. Xo other train than the one which came in collision with the wagon was approaching or was in sight. ■ The evidence tends to show that the engine approached the crossing at a speed of 50 or 60 miles an hour, and that the whistle was not sounded or the bell rung. The evidence of the witnesses, many of them in no way interested, and the photographs which were put in evidence, clearly demonstrate that a person driving along the highway from a point 150 feet distant from the south track of defendant’s railroad, sitting in a wagon as was the plaintiff, had an unobstructed view of the railroad to the west for nearly 1,000 . feet, and substantially continuously until'the crossing was reached.
Without going over the evidence in detail, it necessitates the inference that the plaintiff, by the exercise of ordinary care and prudence, could have observed the approaching train and have avoided the accident; that he did see it or failed to exercise such care. Such being the case he must be deemed to have been negligent. (Thomas Neg. 424.)
In the case of Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. [73]*73199) it was held that if the facts show that a person approaching a-railroad crossing could have seen an approaching train, and did not see it, he is guilty of negligence and cannot recover for injuries-sustained by corning in collision with such train.
In Smith v. N. Y. C. & H. R. R. R. Co. (44 N. Y. St. Repr. 55) the court says: “ The courts, as it seems to us, are not bound: by the bare assertion of a party that he used his natural faculties of seeing and hearing before attempting to cross the track, to submit', his case to the jury, when it is manifestly untrue, or it is shown’ that the observation was not opportunely made.”
In the case of Nash v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 715) the plaintiff was familiar with the crossing, and in the afternoon of a clear day he drove upon the crossing of defendant’s-road, where he was struck. At a point within twenty-five feet of' the track he could have seen the train for half a mile. It was held; that the plaintiff was chargeable with contributory negligence and could not recover.
The discussion of this question and the rule laid down by the court in Cullen v. D. & H. Canal Co. (113 N. Y. 667) are especially applicable to the facts of the case at bar.
Thé conclusion is reached that the finding of the jury that the-plaintiff was free from contributory negligence is against the weight-o*f evidence.
Assuming that the plaintiff was guilty of negligence which contributed to the accident, was such negligence imputable to the’ deceased %
As we have seen, at the time of the accident the deceased was-only eighteen months old, was being held by his mother in her lap,, and was in her immediate custody and control. He could do nothing to protect himself, and was entirely dependent upon the mother.. Upon the same state of facts it- was held (41 App. Div.
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McLennan, J.:
On the 9th day of January, 1898, the defendant was engaged in operating a double-track railroad, which extends substantially east and west in the town of Farmington, Ontario county, N. Y. Upon that day the plaintiff, the father of the decedent, was riding in a light lumber wagon- drawn by an old, gentle horse, driven by him- along a highway leading from the southwest to the northeast .across the railroad .tracks of the defendant, at an angle of about twenty-five degrees. The plaintiff and a young man were sitting upon a spring seat in the forward part of the wagon, and between them a child of the plaintiff, three and a half years old. Behind them in. the back part of the wagon, facing easterly, the plaintiff’s wife was sitting upon a couch, holding the decedent, then about eighteen months old, in her arms. As the wagon got upon the first [71]*71■or southerly track, a light engine approaching from the west came in collision with it; the decedent was thrown out and received injuries from which he died. The plaintiff’s wife was also thrown out and injured.
The action was tried upon the theory, and the learned trial justice so charged the jury, that the negligence of the plaintiff) if any, as well as the negligence of the mother, was imputable to the deceased, and that if the negligence of either contributed to the accident no recovery could be had.
Four propositions were submitted to the jury for its determination :
First. Was the defendant guilty of negligence which caused the accident ?
Second. W as the plaintiff, the father of the deceased, guilty of contributory negligence ?
Third. Was Augusta Lewin, the mother of the deceased, guilty of contributory negligence ? and
Fourth. The amount of damages.
The jury by its verdict determined each of those propositions favorably to the plaintiff.
In an action brought by the plaintiff’s wife, Augusta Lewin, to recover damages for the injuries which she sustained in the same accident, upon substantially the same evidence as is contained in this record, this court held (41 App. Div. 89), that the question of defendant’s negligence was a question of fact for the.jury. It was also held that the question of the plaintiff’s negligence in that case -(the mother of the deceased) was also a question of fact for the jury. The question of the negligencé of the plaintiff in this case, who .was driving, was not passed upon, as it was held to be immaterial because his negligence was not imputable to his wife.
Aside from the questions thus .decided,' three questions are presented for our determination by this appeal:
First. Does the evidence fairly justify the finding of the jury f hat the plaintiff was free from contributory negligence, or is such finding against the weight of evidence ?
Second. If the plaintiff was guilty of contributory negligence, is such negligence imputable to the deceased, so as to prevent a n’ecovery ?
[72]*72Third. If the death of the decedent was caused by the negligent act of the plaintiff, who as next of kin is entitled to receive the entire amount of the recovery, if any, would that, as matter of law, defeat a recovery, although such negligent act is not imputable to the deceased ? ' ■ ■
As to the plaintiff’s negligence. The accident occurred between ten and twelve o’clock on the forenoon, of a bright, clear day. The wind was blowing about seven miles an hour, from the direction from which the engine was approaching the crossing. The plaintiff was sitting upon a raised spring seat on the wagon, on the side next to the approaching train. The horse which he was driving; was old and gentle; was not afraid of the cars, was under perfect control, and was walking not faster than about two miles an hour. There was nothing to divert the plaintiff’s attention, and when at a point about 560 feet distant from the place of the accident, his wife called his attention to the fact that they were approaching the crossing, and cautioned, him to look put for the same. From the' highway west the defendant’s. tracks extend in a straight line for .a distance of 1,000 feet, and then curve only one degree. The highway is on substantially the same grade as the railroad tracks and the surrounding country. Xo other train than the one which came in collision with the wagon was approaching or was in sight. ■ The evidence tends to show that the engine approached the crossing at a speed of 50 or 60 miles an hour, and that the whistle was not sounded or the bell rung. The evidence of the witnesses, many of them in no way interested, and the photographs which were put in evidence, clearly demonstrate that a person driving along the highway from a point 150 feet distant from the south track of defendant’s railroad, sitting in a wagon as was the plaintiff, had an unobstructed view of the railroad to the west for nearly 1,000 . feet, and substantially continuously until'the crossing was reached.
Without going over the evidence in detail, it necessitates the inference that the plaintiff, by the exercise of ordinary care and prudence, could have observed the approaching train and have avoided the accident; that he did see it or failed to exercise such care. Such being the case he must be deemed to have been negligent. (Thomas Neg. 424.)
In the case of Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. [73]*73199) it was held that if the facts show that a person approaching a-railroad crossing could have seen an approaching train, and did not see it, he is guilty of negligence and cannot recover for injuries-sustained by corning in collision with such train.
In Smith v. N. Y. C. & H. R. R. R. Co. (44 N. Y. St. Repr. 55) the court says: “ The courts, as it seems to us, are not bound: by the bare assertion of a party that he used his natural faculties of seeing and hearing before attempting to cross the track, to submit', his case to the jury, when it is manifestly untrue, or it is shown’ that the observation was not opportunely made.”
In the case of Nash v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 715) the plaintiff was familiar with the crossing, and in the afternoon of a clear day he drove upon the crossing of defendant’s-road, where he was struck. At a point within twenty-five feet of' the track he could have seen the train for half a mile. It was held; that the plaintiff was chargeable with contributory negligence and could not recover.
The discussion of this question and the rule laid down by the court in Cullen v. D. & H. Canal Co. (113 N. Y. 667) are especially applicable to the facts of the case at bar.
Thé conclusion is reached that the finding of the jury that the-plaintiff was free from contributory negligence is against the weight-o*f evidence.
Assuming that the plaintiff was guilty of negligence which contributed to the accident, was such negligence imputable to the’ deceased %
As we have seen, at the time of the accident the deceased was-only eighteen months old, was being held by his mother in her lap,, and was in her immediate custody and control. He could do nothing to protect himself, and was entirely dependent upon the mother.. Upon the same state of facts it- was held (41 App. Div. 89) .that-the plaintiff’s negligence was not imputable to the mother, and that whether 'or not she was guilty of negligence was a question of faction the jury. The jury by its verdict in this case found that she-was not guilty of negligence, and found in substance that she did not do or omit to do any act which she should have done or omitted, in-the proper discharge of the duty which she owed to the deceased. [74]*74Under such circumstances it is clear that, except for the fact that the plaintiff bore the relation of father to the deceased, no claim could be made that the negligence of the plaintiff would prevent a recovery on behalf of the child. If the deceased had been an adult, the plaintiff’s negligence would not' have been imputable to him. (Haag v. N. Y. C. & H. R. R. R. Co., supra; Lewin v. Lehigh Valley R. R. Co., supra) .
If the young man riding with the plaintiff had been driving, and ■ had negligently driven upon the track and thus caused the accident, •clearly such negligence would not have prevented a recovery on behalf of the deceased. It was the negligent act of the plaintiff as ■driver which caused the accidént, and we think the fact that such •driver bore the relation of father to the deceased is, under the circumstances, entirely immaterial, and that his negligence is not imputable to the deceased.
The precise question, arising upon a state of facts almost identical with the facts in this case, was decided in Hennessey v. Brooklyn City R. R. Co. (6 App. Div. 206). In that case the plaintiff, an infant = twenty-one months old, was riding.with her father, arid mother in a phaeton which was being drawn by a horse driven by the father, arid the plaintiff was held by her mother in her' lap. 'The father negligently drove upon the crossing of the defendant’s xailroad,. and the infant plaintiff was injured. It was held that the negligence of the father was not imputable to.the infant, and that the mother being free from contributory negligence, the plaintiff was entitled to recover.
Mr. Justice Cullen, in writing the opinion of the court, says: '“In this case the child, while in law subject to the paramount guardianship of the father, was in the immediate custody of the - mother. Its extreme youth rendered it necessary that, except while in the house, some one must have not merely legal control, but' ■ almost actual personal possession of the child. Here that' person was the mother, who held the child in her arms. It should, for the purposes of this action, be deemed as in her immediate custody, not •as in the custody of both parents, or of the father alone. The attention or care that at the time was to be bestowed upon it, from its helpless condition, because it was an infant and not an adult, was to proceed from the mother. The care that the father was to exercise, [75]*75lie was to exercise whether the plaintiff was non sui juris or an adult, whether it was his child or a stranger’s. The mother’s negligence was, therefore, properly to be attributed to the child, but not that of the father.”
While we think the question is not entirely free from doubt, we are inclined to' follow the unanimous decision of the court in that . case, and hold that the negligence of the plaintiff in this case was ■not imputable to the deceased.
If we are right in this conclusion, the error of the learned trial justice in charging the jury that the plaintiff’s negligence was ■imputable to the deceased in no manner prejudiced the defendant. The question of plaintiff’s negligence was submitted to the jury, and they found adversely to the defendant’s contención. It is concluded that such finding was against .the weight of evidence, butJOt be assumed that, as, matter of law, the plaintiff was guilty of negligence which contributed to the accident, that fact would not be available to the defendant as a defense to this action.
In view'of the conclusions reached, it is entirely immaterial yvhether the plaintiff was or was not guilty of negligence. If he was not, as the jury found, that branch of defendant’s defense falls. If he was, and Jais negligence .was not imputable to the deceased, it is not available as a defense.
The case was submitted to the jury not only upon the theory-that the plaintiff’s negligeaace would bar a recoveiy, but the jury was expressly charged that if it found that the mothér of the deceased was guilty of negligence, then no recovery cocald be had. The jury found that she was free from negligence, and the evidence amply justified such finding.
The only remaining question to. be considered is whether or not the plaintiff is entitled to a’ecovei’, assuming that his wrongful or negligent act contributed to the accident which resulted in the death of his child, because of the fact that, under .the statute, the. plaintiff as next of kin is eaatitled to a’eceive the damages resulting from such death.
It is conceded by counsel that this question has not been directly passed upon by the courts of this State. The statute under which this action is brought provides: “ The executor or administa-ator of a decedent, who has left, him or her surviving, a husband, wife or [76]*76next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued.” (Code Civ. Proc. § 1902.)
Upon the facts the decedent, if living,, could have maintained an action to recover the damages sustained by him, caused by the negligence of the defendant. Therefore, by the express terms of the statute- the action is maintainable by the plaintiff. The statute does not contain the limitation contended for by the defendant. If the deceased had left several next of kin him surviving, all similarly situated as to him, each would have been entitled under the statute to a pro rata share of any recovery which might be had.. If the negligence o f one of such next of kin contributed to the accident which resulted in the death, would such negligence prevent a recovery ? Certainly the rights of those who were free from negligence ought not' to be thus affected, and if so, then in such ease should a jury be instructed to deduct from its verdict the share of the one negligent ? . -
It is apparent that the rule contended for by defendant’s counsel would lead to great confusion in the administration of the law in this class of cases, and ought not to be adopted except for substantial reasons. There is nothing to indicate that the Legislature intended that such construction should be placed upon the statute, but, on the contrary, its language would seem to forbid such an interpretation.
. The rule that one shall not claim, at the hands of the law, a benefit which results from a wrong done by himself, has only been held to apply, by the courts of this State, to willful Wrongs. (Riggs v. Palmer, 115 N. Y. 506.)
In that case a man had murdered his grandfather, in order that he might obtain his property under a will, and it: was held he could not take the property. Judge Earl, writing the opinion of the court, said :
“ No one. shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his owii iniquity, or to ■ acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law. [77]*77administered in all civilized countries, and have nowhere been superseded by statutes.”
The negligent act of the plaintiff was not fraudulent, iniquitous •or criminal; was not intentional or willful* and we think does not -come within the rule stated by the learned jurist. Although the word “ wrongful ” is sometimes used to characterize a negligent act, it. may more properly be called a careless, heedless or thoughtless .act, implying no intentional omission of duty. Before a person chargeable with merely such acts is deprived of an important right •conferred by the express words of a statute, such an intention should be clearly indicated, or at least it should be apparent that to confer ¡such right is violative "of some fundamental maxim of law of universal application.
We do not conceive that any question of public policy is involved. "If the plaintiff’s act had been intentional, if he had willfully driven upon the track for the purpose of injuring the decedent, so that he nnight gain thereby or recover damages therefor, the rule laid down in Riggs v. Palmer (supra) would apply, and no recovery could be had.
The Legislature has in substance declared by the statute in question that where the death of a person is caused by the negligent, act •of another, the next of kin may recover from such negligent party the damages sustained thereby, notwithstanding the negligence of ¡such next of kin contributed thereto.
The doctrine contended for by the learned counsel for the defend.ant is, in effect, held in Bamberger v. Citizens' St. R. Co. (95 Tenn. 18); City of Pekin v. McMahon (154 Ill. 141); Koons v. St. Louis & I. M. R. R. Co. (65 Mo. 592); Baltimore & O. R. R. Co. v The State (30 Md. 47); T. M. R. & M. N. C. Co. v. Herbeck (60 Tex. 602).
The contrary doctrine was held in Wymore v. Mahaska County (78 Iowa, 396). In that case the court said “ It is claimed that appellant .ought not to recover, for the reason that it is not shown ¡that the parents of the child were free from contributory negli.gence; and, since they inherited his estate, the rule which would bar a negligent-parent from recovering in such a case m his own 'right ought to apply. But plaintiff seeks to recover in the right of rthe child, .and .not for the parents. It may be that a recovery in [78]*78this case will result in conferring an undeserved benefit upon the father, but that is a matter which we cannot investigate. If the facts are such that the child could have recovered had his injuries, not been fatal, his administrator may recover the full amount of damages which the estate of the child sustained.” (Norfolk & W. R. R. Co. v. Groseclose’s Adm’r, 88 Va. 267.)
While the weight of authority outside of this State would seem to support the contention of the learned counsel for the appellant, in view of the express words of the statute, and for the reasons above indicated, we are constrained to hold that the plaintiff is entitled to recover, notwithstanding that the evidence may be held to establish contributory negligence on his part; and that the judgment and order appealed from should be affirmed, with costs.
Adams, P. J., and Spring, J., concurred; Laughlin, J., concurred in result; Williams, J., dissented.
Judgment and order affirmed, with costs.