Culver, J.*
The question reserved for the advice of this court is, whether upon the facts found the plaintiffs are entitled to anything more than nominal damages. If the plaintiffs were guilty of such negligence as essentially contributed to the injury, they certainly are not.
[The judge here states the facts.]
We think the facts show very clearly that the plaintiffs were guilty of such negligence as essentially contributed to the injury. They knew, or might have known, that a train was near, for they heard it only a moment before they arrived at the crossing. By bending forward and looking to the left of the carriage they could have seen the train standing at the station, for the head-light of the locomotive was lighted. When within about two rods of the crossing Mr. Peck was particularly cautioned by Mrs. Peck to be sure there were no cars. Ordinary prudence should have prompted both Mr. Peck and his wife to look and see whether a train was near.
We think the facts show culpable negligence on the'part of both husband and wife. But if the husband alone was guilty of negligence, it is well settled that under such circumstances his negligence is to be imputed to his wife. Carlisle et ux. v. Sheldon, 38 Verm., 440; Shearman & Redfield on Negligence, § 46; and many more authorities which might be cited.
In Butterfield v. Western R. R. Co., 10 Allen, 532, it was held that a traveler upon a highway which is crossed by a railroad on a level, who knows that he is near the crossing and yet does not look up to see if a train is coming,' is guilty of such negligence that he cannot recover for an injury sustained from a collision. In that case it was stormy, and the traveling bad, but the court say that that did not excuse the man from using his sense of sight. Chapman, J., speaking for the court, says: “By due [393] care, is meant reasonable care adapted to tbe circumstances of tbe case. The crossing of a place known to be so dangerous as a railroad track frequently is by reason of the passing trains, reasonably requires a high degree of watchfulness and attention. Before attempting to cross a man should make reasonable use of his sense of sight, as well as of hearing, in order to ascertain whether he will expose himself to collision.”
In Wilds v. Hudson River R. R. Co., 24 N. York, 430, the court say: “ One driving in a highway across the railroad track is guilty of negligence fatal to an action if he does so without looking for a train which he would have seen, or listening for signals of its approach which he would have heard, in time to have avoided a collision. It is also such negligence in one knowing the position of the road and the frequent passage of trains, to approach a crossing at such speed as to be unable to stop his horse before getting upon the track. * * The danger may be there; the precaution is simple; to stop, to pause, is certainly safe. His time to do so is before he puts himself in ‘ the very road of casualty.’ If he fails to do so it is of no consequence in the eye of the law whether he merely misjudges or is obstinately reckless. His act is not careful, and he ought to abide the consequences—not the company under or into whose train he saw fit to run—whether he did so in inexcusable ignorance or in the belief that he could run the gauntlet unharmed. Nor is the court to look about to find how he, after putting himself there, conducted; whether he then took the best means of escape, or in his confusion ran more hopelessly into the jaws of death. No degree of presence of mind, no want of presence of mind at that time, has anything to do with the case. He should not be there by want of care"
It is said that the place where the accident occurred is a highway, and that the plaintiffs had a right to be there. Such a claim was answered by Gould, J., in the same case, as follows:—“ Certainly it is a highway, or he would have no right to be there at all, and he could not recover, [394] no matter what might be the negligence of the company. Further, it is a part of a railroad track, and the train has a right to pass there. It is a place in which two easements .have a common right; and it is the right of the public that both should be so enjoyed as not unnecessarily to interfere with or abridge the rights of either. A sound and reasonable view of cases of this description is of as much importance to the public as it is to railroad companies. Such corporations are to be treated precisely as any other party. No more stringent rule is to be applied to them than is applied to individuals; nor is any less stringent one. Every citizen of the state has a deep interest in the exist-' ence and the successful operation of such companies; they have need of those powerful means, the use of which is necessarily accompanied with danger. But as the public has the benefit of those means it is bound to incur its share of the danger. A mutual duty is enjoined, and a mutual liability results from a failure to perform that duty; and the party who fails in performing his own part thereof is in no condition to enforce the penalty of a breach on the other.” The court further say:—“ A railroad crossing is known to be a dangerous place, and the man who knowing it to be a railroad crossing approaches it, is careless unless he approaches it as if it were dangerous.”
It is insisted by the plaintiffs’ counsel that the gate-tenders were guilty of culpable negligence in closing the gates as they did; that they should have waited until the plaintiffs had crossed, notwithstanding their instructions to close them when the engineer gave the signal for closing them.
It is found that the gate-tender of the south gate did not know that the plaintiffs were following him and his gate. If he saw them at the time the bell was struck by the engineer he knew they were a considerable distance from the outer rail of the main track, and would naturally suppose they would heed the warning and stop. He was engaged in moving his ponderous gate, forty-seven feet long, with his back to the plaintiffs. Mr. Peck knew it was his duty to [395] stop his horse and endeavored to do so, and doubtless would have succeeded but for its being so hard mouthed and dull.
It does not appear from the facts that the man at the north gate supposed, or had reason to suppose, that his gate would come in contact with the plaintiffs’ carriage when he began to move it in obedience to the signal. That gate was forty-eight and a half feet long. For aught that appears, the slight interlocking and striking the felloes may have been, and probably was, occasioned by the horse being pulled round by Mr. Peck in his vain efforts to stop it.
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Culver, J.*
The question reserved for the advice of this court is, whether upon the facts found the plaintiffs are entitled to anything more than nominal damages. If the plaintiffs were guilty of such negligence as essentially contributed to the injury, they certainly are not.
[The judge here states the facts.]
We think the facts show very clearly that the plaintiffs were guilty of such negligence as essentially contributed to the injury. They knew, or might have known, that a train was near, for they heard it only a moment before they arrived at the crossing. By bending forward and looking to the left of the carriage they could have seen the train standing at the station, for the head-light of the locomotive was lighted. When within about two rods of the crossing Mr. Peck was particularly cautioned by Mrs. Peck to be sure there were no cars. Ordinary prudence should have prompted both Mr. Peck and his wife to look and see whether a train was near.
We think the facts show culpable negligence on the'part of both husband and wife. But if the husband alone was guilty of negligence, it is well settled that under such circumstances his negligence is to be imputed to his wife. Carlisle et ux. v. Sheldon, 38 Verm., 440; Shearman & Redfield on Negligence, § 46; and many more authorities which might be cited.
In Butterfield v. Western R. R. Co., 10 Allen, 532, it was held that a traveler upon a highway which is crossed by a railroad on a level, who knows that he is near the crossing and yet does not look up to see if a train is coming,' is guilty of such negligence that he cannot recover for an injury sustained from a collision. In that case it was stormy, and the traveling bad, but the court say that that did not excuse the man from using his sense of sight. Chapman, J., speaking for the court, says: “By due [393] care, is meant reasonable care adapted to tbe circumstances of tbe case. The crossing of a place known to be so dangerous as a railroad track frequently is by reason of the passing trains, reasonably requires a high degree of watchfulness and attention. Before attempting to cross a man should make reasonable use of his sense of sight, as well as of hearing, in order to ascertain whether he will expose himself to collision.”
In Wilds v. Hudson River R. R. Co., 24 N. York, 430, the court say: “ One driving in a highway across the railroad track is guilty of negligence fatal to an action if he does so without looking for a train which he would have seen, or listening for signals of its approach which he would have heard, in time to have avoided a collision. It is also such negligence in one knowing the position of the road and the frequent passage of trains, to approach a crossing at such speed as to be unable to stop his horse before getting upon the track. * * The danger may be there; the precaution is simple; to stop, to pause, is certainly safe. His time to do so is before he puts himself in ‘ the very road of casualty.’ If he fails to do so it is of no consequence in the eye of the law whether he merely misjudges or is obstinately reckless. His act is not careful, and he ought to abide the consequences—not the company under or into whose train he saw fit to run—whether he did so in inexcusable ignorance or in the belief that he could run the gauntlet unharmed. Nor is the court to look about to find how he, after putting himself there, conducted; whether he then took the best means of escape, or in his confusion ran more hopelessly into the jaws of death. No degree of presence of mind, no want of presence of mind at that time, has anything to do with the case. He should not be there by want of care"
It is said that the place where the accident occurred is a highway, and that the plaintiffs had a right to be there. Such a claim was answered by Gould, J., in the same case, as follows:—“ Certainly it is a highway, or he would have no right to be there at all, and he could not recover, [394] no matter what might be the negligence of the company. Further, it is a part of a railroad track, and the train has a right to pass there. It is a place in which two easements .have a common right; and it is the right of the public that both should be so enjoyed as not unnecessarily to interfere with or abridge the rights of either. A sound and reasonable view of cases of this description is of as much importance to the public as it is to railroad companies. Such corporations are to be treated precisely as any other party. No more stringent rule is to be applied to them than is applied to individuals; nor is any less stringent one. Every citizen of the state has a deep interest in the exist-' ence and the successful operation of such companies; they have need of those powerful means, the use of which is necessarily accompanied with danger. But as the public has the benefit of those means it is bound to incur its share of the danger. A mutual duty is enjoined, and a mutual liability results from a failure to perform that duty; and the party who fails in performing his own part thereof is in no condition to enforce the penalty of a breach on the other.” The court further say:—“ A railroad crossing is known to be a dangerous place, and the man who knowing it to be a railroad crossing approaches it, is careless unless he approaches it as if it were dangerous.”
It is insisted by the plaintiffs’ counsel that the gate-tenders were guilty of culpable negligence in closing the gates as they did; that they should have waited until the plaintiffs had crossed, notwithstanding their instructions to close them when the engineer gave the signal for closing them.
It is found that the gate-tender of the south gate did not know that the plaintiffs were following him and his gate. If he saw them at the time the bell was struck by the engineer he knew they were a considerable distance from the outer rail of the main track, and would naturally suppose they would heed the warning and stop. He was engaged in moving his ponderous gate, forty-seven feet long, with his back to the plaintiffs. Mr. Peck knew it was his duty to [395] stop his horse and endeavored to do so, and doubtless would have succeeded but for its being so hard mouthed and dull.
It does not appear from the facts that the man at the north gate supposed, or had reason to suppose, that his gate would come in contact with the plaintiffs’ carriage when he began to move it in obedience to the signal. That gate was forty-eight and a half feet long. For aught that appears, the slight interlocking and striking the felloes may have been, and probably was, occasioned by the horse being pulled round by Mr. Peck in his vain efforts to stop it.
I see no culpable negligence on the part of the gate-tenders. They were constantly on duty to open and close the gates for the better protection of travelers having occasion to cross. When the engineer struck his bell as a signal to close the gates, as he was about to start his train, it was their duty to obey instructions. If they may refuse to close the gates when the signal is given for that purpose, and wait for a team to pass over which happens to be within ten or twelve feet of the outer rail of the main track at the time the signal is given, a train might be delayed an indefinite time. In a city like Meriden a number of teams might be approaching from either side, and if one might pass why not the others, as each came up within the same distance ? It is more reasonable .that a team or a number of teams should wait a few moments than that a train of cars, with its mails and hundreds of passengers, should be detained.
Neither was the engineer guilty of culpable negligence. He was ready to start his train. If he saw the plaintiffs he too knew that they were a considerable distance from the outer rail, and had good reason to suppose that they would stop at the sound of the bell. He did not start his train however, but held it until Mr. Peck and his team were safely across.
If Mrs. Peck had remained in the carriage she would have passed safely across, as did her husband. She misjudged. She was in no real danger, and there was no more reason for her jumping out of the carriage than there was for her husband. She could see the locomotive, and might have [396] known, as well as her husband that the engineer would not .start his train so long as the team was in danger of being struck by it.
The Court of Common Pleas is advised to render judgment in favor of the plaintiffs for the smaller sum, fifty dollars.
In this opinion Park, C. J., and Loomis, J., concurred; Carpenter and Granger, Js., dissented.