Finch, J.
When this case was last before us on appeal (75 R Y. 273), we held that, upon the facts proven, the plaintiff’s intestate was guilty of contributory negligence which barred a right of recovery. That conclusion was founded upon the rule, grown familiar by its frequent application, that a person upon a highway, in approaching a railroad crossing, is required to make a vigilant use of his eyes and ears to ascertain if there is an approaching train, and if by such use of these faculties, the vicinity of such train may be discovered in time to avoid a collision, the omission to exercise them is such contributory negligence as will bar a recovery for an injury resulting. The controlling facts upon which our judgment rested were those which established that the deceased persisted in an effort to drive across the track with his load of logs in front of the approaching train, when he could have seen and heard it, if vigilant and careful, in time to have stopped and awaited its passage, or to have turned to the right or the left without venturing upon the rail. The specific facts relied upon were principally the following, viz.: that at a distance of one hundred
feet easterly from the rails, and all the way from that point to the track, the deceased could have seen the train approaching if he had looked; that when within twenty-one feet of the rails an approaching train was visible all the way from the bridge, and if he had then looked it was possible for him to have stopped or turned his horses away from the track; that the highway at that point was smooth and nearly level, so that no difficulty intervened to prevent such stopping or turning aside; that though the day was cold and his neck and ears were somewhat muffled as a protection from the weather, it was hardly to be presumed that he could not have heard the rumble of the coming train ; that under the circumstances it was his duty to approach at such rate of speed and with Ms horses so under control that he could have stopped; and that no prudent man would have driven his team so near without looking, nor so fast that he could not stop in an emergency.
A new trial has been had under the guidance and the test of our judgment thus rendered, which has resulted in a recovery by the plaintiff, approved by the General Term and brought here for our final review. It remains for us only to consider whether the facts have been so changed, or such new facts have been added as to make that a question of fact for the jury, which we decided as a question of law.
It is to be observed that on the former appeal the negligence found to have existed was two-fold, consisting, first, in a careless and heedless approach so near to the track as to put the deceased in a plain position of danger; and, second, of such conduct when in that position as indicated reckless rather than prudent action.
The ground for the first charge of negligence is now fairly dissipated by a new fact, or at least evidence from which a jury might fairly find it. Proof is now given that the deceased could not have seen the train while passing the curve at Spring street at any point on Furnace street more than twenty-one feet easterly from the track. There was a single point on Furnace street, two hundred and tMrty feet back from the crossing, where a glimpse of the passing train could
be had during the moment in which it was two hundred and sixty-two feet from the crossing; but when the deceased passed that possible point of view, it is plain that the cars were not there, 'but a long distance off to the south. It is shown, there-, fore, that no amount of vigilance which depended upon eyesight could have disclosed to deceased the approach of the cars when as far from the crossing as the Spring street curve, until a point was reached on Furnace street about twenty-one feet from the rails. There is evidence that the deceased approached the crossing upon a slow trot and that his horses were kind and well broken. Two witnesses who were • driving behind the deceased, and like him were on sleds drawing each a load of logs, and, therefore, were similarly situated, except as to distance from the crossing, testify that they neither heard nor saw the approaching train. It is also proved that the train was- on the curve at Spring street when Salter reached the point on Furnace street from which it could be seen. The end of the curve toward the crossing was four hundred and thirty-five feet therefrom, and if the train was moving at the rate of thirty miles an hour, as some witnesses estimate, it was distant from the crossing, measured in time, only ten seconds, and even if the estimate of speed be reduced to ten miles an hour, the train would run from the curve to the crossing in half a minute. If there was any place on the road at which the signal of the bell or the warning of the whistle, required by law, were essential to the safety of .the traveler, it was at this crossing, where sight could be of no service except at the moment when danger was already imminent, and safety turned upon the judgment of a few swift and frightened seconds. The facts thus developed go far to relieve the deceased from the imputation of negligence in approaching the point of danger. If he could have seen one hundred feet away from the rails the movement of the train, as we held established on the former appeal, and without looking, blindly and carelessly drove to the point of danger, it was easy to pronounce him negligent. But now that the evidence permits the inference that he could not see, however vigilant or watchful, until
within twenty-one feet of the track, and when his horses’ heads must have been within four feet of the rails, it is impossible to say that his approach to that point was necessarily negligent, or take the facts and circumstances from which the question was to be determined away from the jury. •
What next occurred has also its changed and modified conditions. The standard by which we should judge the conduct of a man brought suddenly and without fault into the presence of danger ought not to be rigid and severe. The deceased in the present case appears to have become alarmed and aroused to a sense of peril, either by something seen or heard, at the first moment in which a sight of the cars was possible. He looked both ways. It is quite probable that he saw the engine coming. He should have stopped even then, or turned aside, if he could. One would think that the instinct of self-preservation would have taught him that; but in any event it was his duty, and nothing could excuse a reckless effort to cross in front of the train except the impossibility of doing otherwise. There is evidence now from which a jury would be justified in thinking that he tried to stop and tried to turn, but could do neither. It is shown that at the crossing the railroad track was depressed from eighteen to twenty inches below the surface of ffurnace street, so that for six or eight feet back from the rails there was a descent or slope of the highway of about two and one-half inches to the foot; that the roadway was icy, and the load drawn by the horses weighed between three and four thousand pounds. It is further proved that banks of snow and ice bordered each side of the traveled track, beginning three or four feet from the rails and extending easterly on each side of the roadway for a distance of at least six to eight feet. These banks appear to have been from two to three feet high.
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Finch, J.
When this case was last before us on appeal (75 R Y. 273), we held that, upon the facts proven, the plaintiff’s intestate was guilty of contributory negligence which barred a right of recovery. That conclusion was founded upon the rule, grown familiar by its frequent application, that a person upon a highway, in approaching a railroad crossing, is required to make a vigilant use of his eyes and ears to ascertain if there is an approaching train, and if by such use of these faculties, the vicinity of such train may be discovered in time to avoid a collision, the omission to exercise them is such contributory negligence as will bar a recovery for an injury resulting. The controlling facts upon which our judgment rested were those which established that the deceased persisted in an effort to drive across the track with his load of logs in front of the approaching train, when he could have seen and heard it, if vigilant and careful, in time to have stopped and awaited its passage, or to have turned to the right or the left without venturing upon the rail. The specific facts relied upon were principally the following, viz.: that at a distance of one hundred
feet easterly from the rails, and all the way from that point to the track, the deceased could have seen the train approaching if he had looked; that when within twenty-one feet of the rails an approaching train was visible all the way from the bridge, and if he had then looked it was possible for him to have stopped or turned his horses away from the track; that the highway at that point was smooth and nearly level, so that no difficulty intervened to prevent such stopping or turning aside; that though the day was cold and his neck and ears were somewhat muffled as a protection from the weather, it was hardly to be presumed that he could not have heard the rumble of the coming train ; that under the circumstances it was his duty to approach at such rate of speed and with Ms horses so under control that he could have stopped; and that no prudent man would have driven his team so near without looking, nor so fast that he could not stop in an emergency.
A new trial has been had under the guidance and the test of our judgment thus rendered, which has resulted in a recovery by the plaintiff, approved by the General Term and brought here for our final review. It remains for us only to consider whether the facts have been so changed, or such new facts have been added as to make that a question of fact for the jury, which we decided as a question of law.
It is to be observed that on the former appeal the negligence found to have existed was two-fold, consisting, first, in a careless and heedless approach so near to the track as to put the deceased in a plain position of danger; and, second, of such conduct when in that position as indicated reckless rather than prudent action.
The ground for the first charge of negligence is now fairly dissipated by a new fact, or at least evidence from which a jury might fairly find it. Proof is now given that the deceased could not have seen the train while passing the curve at Spring street at any point on Furnace street more than twenty-one feet easterly from the track. There was a single point on Furnace street, two hundred and tMrty feet back from the crossing, where a glimpse of the passing train could
be had during the moment in which it was two hundred and sixty-two feet from the crossing; but when the deceased passed that possible point of view, it is plain that the cars were not there, 'but a long distance off to the south. It is shown, there-, fore, that no amount of vigilance which depended upon eyesight could have disclosed to deceased the approach of the cars when as far from the crossing as the Spring street curve, until a point was reached on Furnace street about twenty-one feet from the rails. There is evidence that the deceased approached the crossing upon a slow trot and that his horses were kind and well broken. Two witnesses who were • driving behind the deceased, and like him were on sleds drawing each a load of logs, and, therefore, were similarly situated, except as to distance from the crossing, testify that they neither heard nor saw the approaching train. It is also proved that the train was- on the curve at Spring street when Salter reached the point on Furnace street from which it could be seen. The end of the curve toward the crossing was four hundred and thirty-five feet therefrom, and if the train was moving at the rate of thirty miles an hour, as some witnesses estimate, it was distant from the crossing, measured in time, only ten seconds, and even if the estimate of speed be reduced to ten miles an hour, the train would run from the curve to the crossing in half a minute. If there was any place on the road at which the signal of the bell or the warning of the whistle, required by law, were essential to the safety of .the traveler, it was at this crossing, where sight could be of no service except at the moment when danger was already imminent, and safety turned upon the judgment of a few swift and frightened seconds. The facts thus developed go far to relieve the deceased from the imputation of negligence in approaching the point of danger. If he could have seen one hundred feet away from the rails the movement of the train, as we held established on the former appeal, and without looking, blindly and carelessly drove to the point of danger, it was easy to pronounce him negligent. But now that the evidence permits the inference that he could not see, however vigilant or watchful, until
within twenty-one feet of the track, and when his horses’ heads must have been within four feet of the rails, it is impossible to say that his approach to that point was necessarily negligent, or take the facts and circumstances from which the question was to be determined away from the jury. •
What next occurred has also its changed and modified conditions. The standard by which we should judge the conduct of a man brought suddenly and without fault into the presence of danger ought not to be rigid and severe. The deceased in the present case appears to have become alarmed and aroused to a sense of peril, either by something seen or heard, at the first moment in which a sight of the cars was possible. He looked both ways. It is quite probable that he saw the engine coming. He should have stopped even then, or turned aside, if he could. One would think that the instinct of self-preservation would have taught him that; but in any event it was his duty, and nothing could excuse a reckless effort to cross in front of the train except the impossibility of doing otherwise. There is evidence now from which a jury would be justified in thinking that he tried to stop and tried to turn, but could do neither. It is shown that at the crossing the railroad track was depressed from eighteen to twenty inches below the surface of ffurnace street, so that for six or eight feet back from the rails there was a descent or slope of the highway of about two and one-half inches to the foot; that the roadway was icy, and the load drawn by the horses weighed between three and four thousand pounds. It is further proved that banks of snow and ice bordered each side of the traveled track, beginning three or four feet from the rails and extending easterly on each side of the roadway for a distance of at least six to eight feet. These banks appear to have been from two to three feet high. Into this channel, wide enough only for a single sleigh to pass, the deceased had driven, before any warning of danger had reached him. At four feet from the rails, his horses were upon the icy slope, with the momentum of the heavy load pressing them forward, and no chance for turning them sharply around to the right or left. That he tried to stop and could not; that he tried to turn and could not, becomes
not only a possible but a probable inference. The only remaining chance open in the few brief moments was to jump from the load and abandon his property to the coming blow. That last effort he made, only to be crushed under the wheels of the train.
It is impossible to deny that the case as now presented is widely different from that passed upon by us before. Whatever may still be said in favor of the defendant’s theory of the negligence of the deceased, and very much was pressed upon our attention which has caused reflection, it is still true that the facts of the transaction now fairly admit of the contrary inference, and between the two it was the duty and the province of the jury to choose, and we must abide by their decision.
Two exceptions to the charge of the court remain to be considered. It is claimed that the speed of the train was submitted to the jury as possible evidence of negligence on the part of the defendant. The charge, however, upon this branch of the case seems to us, when taken altogether, not fairly open to objection. The learned judge charged expressly that the railroad company had a right to travel over its road at pleasure at such rate of speed as it saw fit. Then followed a very necessary qualification, that circumstances might make the exercise of such right an element of negligence. When the exr ception was taken it was after a further explanation which, in connection with the rest of the charge, must lead us to understand it as saying, that great speed of the train was not in itself necessarily negligence, but in connection with other facts and circumstances might tend to establish it, and the jury must determine whether the present was such a case. If a train runs through a city or village, a crowded locality where danger was to be apprehended, without ringing a bell or sounding a whistle, and does so at a high rate of speed, the latter fact is a proper circumstance bearing upon the question of negligence. Under such conditions the greater rate of speed draws with it the .need of a commensurate care and caution at points where the speed would add to the chances and danger of accident. While not in itself necessarily negligence, it may
be an element giving force to other facts tending to prove it, and explaining in a given instance the operation and effect of such other facts. It always bears more or less upon the question of contributory negligence, and is an element of the entire transaction, proper to be proved, and when established may be considered upon any issue which it tends to explain. Full force was given by the charge to the right of the defendant to choose and regulate its own rate of speed, but the jury were told that the right was not wholly unaffected by surrounding or attendant conditions, and might be negligently as well as rightfully exercised. In this we think there was no error.
(Massoth
v.
D. & H. Canal Co.,
64 N.
Y.
531;
Cordell
v.
N.
Y.
Cent. & H. R. R. R. Co.,
70 id. 124.)
The charge was subjected to the further criticism of having stated incorrectly the standard of care and prudence by which the conduct of the deceased was to be measured. The direction complained of was that if the course pursued by the deceased was one which persons of prudence and self-possession would adopt under the same circumstances, he was not negligent in so doing; and that the standard by which the conduct of Salter was to be judged was that of an ordinary, careful, prudent man. This was the correct rule.
(Kellogg
v.
N. Y. C. & H. R. R. R. Co.,
79 N. Y. 76;
Stackus
v.
Same,
id. 468.) The objection taken is that the question was not one of prudence and care, but of a vigilant use of eyes and ears at a point of danger. The last proposition was expressly charged at the request of the defendant in the precise language chosen by its counsel, and was in no sense inconsistent with the general rule, but an application of snch rule to special and peculiar circumstances. There is no fixed and arbitrary standard of prudence and care. It changes with circumstances and conditions. Its precise measure in the present case was given to the jury exactly as requested by the defendant.
On the whole case we are of opinion that no error was committed, and that this long contest may now justly be ended.
The judgment should be affirmed, with costs.
All concur, except Rapadlo, J., absent.
Judgment affirmed.