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The main question which we are to determine in this case is, whether the deceased was guilty of negligence which contributed to the injury that caused his death. At the time when the occurrence took place, he was on the public highway, where he had a perfect right to be, for the purpose of traveling, or of crossing the track. He was familiar with the locality, having lived for some time in the neighborhood, and, probably, was acquainted with the times for the running of the trains. It was not the time for any regular train to pass; but engines and trains were passing at all hours of the day and night. The engine was running at a speed of fifteen miles an hour, and another engine, called a shifting engine, had gone in an opposite direction to the one which
ran over the deceased, of which fact the deceased must have been advised.
The evidence does not show, whether the deceased, before attempting to cross, looked up and down the track to ascertain whether a train was coming; but, it appears the engine or train was in plain sight, as he could see for a distance of seventy or eighty rods.
It is a fair and reasonable presumption, arising from all the circumstances attending the transaction, that he did not look, for had he done so, he must have seen the engine approaching, and he could have escaped, and his life would have been saved.
I think, therefore, that we must assume, that he did not look, and, in failing to do so, he neglected a plain and imperative duty, and was guilty of negligence, which precludes a recovery. A traveler, in crossing a railroad track, is bound to exercise at least ordinary sense, prudence and capacity, and this requires, that he should use his ears and eyes, so far as he has opportunity to do so. None of the cases adjudicated exonerate him from thus employing his faculties; and those which are relied upon as sustaining a contrary doctrine are exceptional, and present more strong and controlling facts, which prevented the party from hearing or seeing the train, so far as I have been able to discover. The later cases, which are supposed to uphold the doctrine, that a party is exonerated from the charge of negligence who does not look, only go to the extent of holding, that a party is not, in law, guilty of negligence in not seeing an approaching train, when crossing a railroad track, when circumstances existed, which tended to show, that the sight was obstructed, or to render it at least doubtful, whether the party was in fault, so that it was proper for the jury to pass upon the question of negligence.
Without examining all the cases bearing upon the question, I will refer briefly to a few recent cases, which are considered as applicable and decisive.
In Brown v. The N.Y.C.R.R. Co. (32 N.Y. 397), a train had passed, and the plaintiff had stopped for it. A
single car had followed at a distance, and he had waited for that, other cars followed, which were not anticipated, and of which the plaintiff had no notice or warning, and it was held, that he was not guilty of negligence in the eye of the law, in not anticipating the detached cars which followed in the rear of the train that had passed.
In Sullivan v. The N.Y.C.R.R. Co. (34 N.Y. 29), the same facts existed as in the case last cited, and the same rule was applied.
In Beisiegel v. The N.Y.C.R.R. Co. (34 N.Y. 622), there were freight cars on one of the tracks, which interrupted the plaintiff's vision, and prevented his seeing the engine approaching, and it was held, that he was not, in law, guilty of negligence.
In Ernst v. The H.R.R.R. Co. (35 N.Y. 9), it was doubtful, whether the deceased did not look up and down the track as far as he could see, and whether, if he had done so, he could have seen the approaching train; also, whether he was not misled by the failure to show the flag in accordance with previous custom; and it was decided, that the question of negligence of the deceased was for the jury.
It will be seen, that none of the authorities cited present a case, where the person injured or killed had a full opportunity to see the train as it was moving along, and that there were obstructions to the view, which is not the case here.
It is said, that the deceased had no occasion to look behind him, as the engine from which he might reasonably expect danger at the time was in an opposite direction; that his attention would naturally be directed there; and that it was not within an hour for any regular train to pass. There was evidence to show, that trains were passing without regard to the time table, and every one conversant with the operations of a railroad is aware, that extra trains are often run out of the usual order, and without regard to regularity, so as to render it unsafe to pass a crossing, during the day-time, without taking an observation to see whether a train is then likely to pass. It was remarked by DENIO, J., in Wilds v. The H.R.R.R. Co. (29 N.Y. 325), "No one can
be secure against being met by an engine, except by ascertaining, by his own senses, that no train is approaching in either direction, within a distance which will endanger his safety." There is much force in this suggestion; and it would, in my opinion, furnish a very imperfect and unsafe protection to a traveler to rely merely upon his knowledge of the time table, or upon the fact, that an unusual train had passed in an opposite direction, and, therefore, none other could be expected. The reason urged, I think, furnishes no sufficient excuse for the neglect of the deceased to use his faculties, and for neglecting to exercise a proper degree of vigilance and care.
It is said, that, as no bell was rung, or whistle sounded, the deceased was not negligent in not hearing the train as it came near the crossing. The testimony on this subject was conflicting, and we must, therefore, assume, that these signals were not given. Does their omission relieve the deceased from the charge of negligence, which contributed to produce the disastrous result which followed? In Ernst v. The H.R.R.R. Co. (35 N.Y. 9), before cited, the opinion of one of the judges holds, that the omission of the customary signals is a breach of duty, and an assurance to the traveler, that no engine is approaching from either side, within eighty rods of the crossing, and that he may rely on such assumption without incurring the imputation of a breach of duty to a wrong-doer. Upon a retrial of the case, a verdict was rendered in favor of the plaintiff, and, on an appeal to this court, the judgment was affirmed. Several of the judges placed their decision upon other and different grounds, than the failure to give the necessary signals, and I do not understand, that a majority of the court held, that such neglect was an assurance of safety, which relieved the wayfarer, who did not look, from the imputation of negligence. In Beisiegel v.N.Y.C.R.R. Co. (supra), the same doctrine is substantially reiterated in one of the opinions which was laid down in the Ernst case; but the case was not decided entirely upon any such ground. MORGAN, J., who also wrote an opinion, concedes, "that it is the duty of a person, who is
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The main question which we are to determine in this case is, whether the deceased was guilty of negligence which contributed to the injury that caused his death. At the time when the occurrence took place, he was on the public highway, where he had a perfect right to be, for the purpose of traveling, or of crossing the track. He was familiar with the locality, having lived for some time in the neighborhood, and, probably, was acquainted with the times for the running of the trains. It was not the time for any regular train to pass; but engines and trains were passing at all hours of the day and night. The engine was running at a speed of fifteen miles an hour, and another engine, called a shifting engine, had gone in an opposite direction to the one which
ran over the deceased, of which fact the deceased must have been advised.
The evidence does not show, whether the deceased, before attempting to cross, looked up and down the track to ascertain whether a train was coming; but, it appears the engine or train was in plain sight, as he could see for a distance of seventy or eighty rods.
It is a fair and reasonable presumption, arising from all the circumstances attending the transaction, that he did not look, for had he done so, he must have seen the engine approaching, and he could have escaped, and his life would have been saved.
I think, therefore, that we must assume, that he did not look, and, in failing to do so, he neglected a plain and imperative duty, and was guilty of negligence, which precludes a recovery. A traveler, in crossing a railroad track, is bound to exercise at least ordinary sense, prudence and capacity, and this requires, that he should use his ears and eyes, so far as he has opportunity to do so. None of the cases adjudicated exonerate him from thus employing his faculties; and those which are relied upon as sustaining a contrary doctrine are exceptional, and present more strong and controlling facts, which prevented the party from hearing or seeing the train, so far as I have been able to discover. The later cases, which are supposed to uphold the doctrine, that a party is exonerated from the charge of negligence who does not look, only go to the extent of holding, that a party is not, in law, guilty of negligence in not seeing an approaching train, when crossing a railroad track, when circumstances existed, which tended to show, that the sight was obstructed, or to render it at least doubtful, whether the party was in fault, so that it was proper for the jury to pass upon the question of negligence.
Without examining all the cases bearing upon the question, I will refer briefly to a few recent cases, which are considered as applicable and decisive.
In Brown v. The N.Y.C.R.R. Co. (32 N.Y. 397), a train had passed, and the plaintiff had stopped for it. A
single car had followed at a distance, and he had waited for that, other cars followed, which were not anticipated, and of which the plaintiff had no notice or warning, and it was held, that he was not guilty of negligence in the eye of the law, in not anticipating the detached cars which followed in the rear of the train that had passed.
In Sullivan v. The N.Y.C.R.R. Co. (34 N.Y. 29), the same facts existed as in the case last cited, and the same rule was applied.
In Beisiegel v. The N.Y.C.R.R. Co. (34 N.Y. 622), there were freight cars on one of the tracks, which interrupted the plaintiff's vision, and prevented his seeing the engine approaching, and it was held, that he was not, in law, guilty of negligence.
In Ernst v. The H.R.R.R. Co. (35 N.Y. 9), it was doubtful, whether the deceased did not look up and down the track as far as he could see, and whether, if he had done so, he could have seen the approaching train; also, whether he was not misled by the failure to show the flag in accordance with previous custom; and it was decided, that the question of negligence of the deceased was for the jury.
It will be seen, that none of the authorities cited present a case, where the person injured or killed had a full opportunity to see the train as it was moving along, and that there were obstructions to the view, which is not the case here.
It is said, that the deceased had no occasion to look behind him, as the engine from which he might reasonably expect danger at the time was in an opposite direction; that his attention would naturally be directed there; and that it was not within an hour for any regular train to pass. There was evidence to show, that trains were passing without regard to the time table, and every one conversant with the operations of a railroad is aware, that extra trains are often run out of the usual order, and without regard to regularity, so as to render it unsafe to pass a crossing, during the day-time, without taking an observation to see whether a train is then likely to pass. It was remarked by DENIO, J., in Wilds v. The H.R.R.R. Co. (29 N.Y. 325), "No one can
be secure against being met by an engine, except by ascertaining, by his own senses, that no train is approaching in either direction, within a distance which will endanger his safety." There is much force in this suggestion; and it would, in my opinion, furnish a very imperfect and unsafe protection to a traveler to rely merely upon his knowledge of the time table, or upon the fact, that an unusual train had passed in an opposite direction, and, therefore, none other could be expected. The reason urged, I think, furnishes no sufficient excuse for the neglect of the deceased to use his faculties, and for neglecting to exercise a proper degree of vigilance and care.
It is said, that, as no bell was rung, or whistle sounded, the deceased was not negligent in not hearing the train as it came near the crossing. The testimony on this subject was conflicting, and we must, therefore, assume, that these signals were not given. Does their omission relieve the deceased from the charge of negligence, which contributed to produce the disastrous result which followed? In Ernst v. The H.R.R.R. Co. (35 N.Y. 9), before cited, the opinion of one of the judges holds, that the omission of the customary signals is a breach of duty, and an assurance to the traveler, that no engine is approaching from either side, within eighty rods of the crossing, and that he may rely on such assumption without incurring the imputation of a breach of duty to a wrong-doer. Upon a retrial of the case, a verdict was rendered in favor of the plaintiff, and, on an appeal to this court, the judgment was affirmed. Several of the judges placed their decision upon other and different grounds, than the failure to give the necessary signals, and I do not understand, that a majority of the court held, that such neglect was an assurance of safety, which relieved the wayfarer, who did not look, from the imputation of negligence. In Beisiegel v.N.Y.C.R.R. Co. (supra), the same doctrine is substantially reiterated in one of the opinions which was laid down in the Ernst case; but the case was not decided entirely upon any such ground. MORGAN, J., who also wrote an opinion, concedes, "that it is the duty of a person, who is
about to cross a railroad track, to make an observation before crossing;" but he considers him relieved from the charge of negligence, when "the vision is constantly obstructed by intervening obstacles, where it is often very difficult to see up and down the railroad track, beyond the space of one or two buildings." He also remarks, "when a man on foot reaches a point near the crossing, and listens, and hears no signal or warning, I think he is not guilty of negligence for attempting to cross the track, in a case where he cannot see up and down the track byreason of obstructions." As we have already seen, the decision of each of these cases depended very much upon the fact, that the vision of the person killed or injured was obstructed by surrounding objects, and, hence, they cannot be regarded as settling, definitely, the principle, that a neglect to give the signals exonerates a person from liability, when he fails to look, and has the means of seeing, if he does thus look.
A series of adjudications are in conflict with this doctrine. In Sheffield v. The R. S.R.R. Co. (21 Barb. 339), the plaintiff was in plain sight of the track, with nothing to obstruct his view. Yet it was held, that it was inexcusable negligence, which contributed to the injury, which precluded a recovery. There was evidence on both sides as to the ringing of the bell, but the verdict being in favor of the plaintiff, it settled the question, that no signal was given. In Brooks v.Niagara Falls R.R. Co. (25 Barb. 600), it was assumed, that no bell was rung, and decided, that a person who crosses a railroad track in ignorance of the approach of a train, when the danger may be easily seen by looking for it, is fairly chargeable with negligence. This case was affirmed on appeal by this court; and it was held, that an attempt to cross a railroad track, without looking up and down to see if a train is approaching, is such an act as a man of ordinary prudence would hardly be guilty of. (See 27 Barb. 532, note.) In Lascomb v. The State Line BuffaloR.R. Co. (27 Barb. 221), it was held, that, to authorize a recovery against a railroad company, for damages sustained by reason of the neglect of the agents to ring a bell, or sound
a whistle, it must appear, that such neglect was the sole cause of the damage; and, if the plaintiff was himself guilty of negligence, which contributed to the injury, he cannot recover, notwithstanding this omission of duty by the company.
In Mackey v. The N.Y.C.R.R. Co. (27 Barb. 528), although the fact, whether a signal was given, was in doubt, and the jury found against the defendant; the new trial was granted on account of the plaintiff's negligence.
In Steves v. The Oswego and Syracuse R.R. Co. (18 N.Y. 422), this court held, that it was not enough to entitle the plaintiff to recover, that he established; that the defendant neither rang the bell nor sounded the whistle, where the plaintiff himself was guilty of negligence in not seeing or hearing the cars, and a nonsuit on the trial was sustained.
In Mackey v. The New York Central R.R. Co. (35 N.Y. 75), the liability of the defendant was put upon the ground, that the company had obstructed the view of travelers on the public highway, by piling wood, so that the approach of a train could not be seen at the crossing until the traveler was on the track.
In Renwick v. The New York Central R.R. Co. (36 N.Y. 132), it appeared that the plaintiff had stopped and listened from four to six rods from the track, and hearing no signal and no indication that the train was approaching, he started his horses and continued looking until he reached the track, and then turning his eyes to the right, found them upon him, the judgment for the plaintiff was upheld.
The effect of the cases cited is to sustain the principle, that, where the negligence of the party injured or killed contributes to produce the result, he cannot recover; and that the omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person, who is about to pass over the highway, from the obligation of employing his sense of hearing and seeing, to ascertain whether a train is approaching. They are entirely applicable to the case before us, and, in the absence of any authority which holds a contrary doctrine where the naked
question is presented which now arises, I think they are decisive and controlling.
It is very plain, that the deceased could have seen the approaching train, had he looked for that purpose. There were no obstructions to his vision, and no occasion to divert his attention which excused him from observing. He recklessly and carelessly neglected to exercise that prudence and care which the circumstances demanded, and exposed himself needlessly and unnecessarily to danger and to certain death. His negligence was inexcusable; and, as actions of this character are founded upon the principle, that the party claiming damages must not contribute to produce the injury, it is difficult to see how any negligence of the party inflicting the injury, can obviate the difficulty. To prove that a party is excused where he has been careless, because the other party has failed to give the accustomed signals, or for any other act of negligence on his part, strikes at the principle upon which such actions are based. Such a rule is not sustained by any of the adjudged cases. And from the consideration I have bestowed upon the subject, I am not prepared to uphold such a doctrine. The motion for a nonsuit, in my judgment, was improperly overruled, and for this error the judgment should be reversed, and a new trial granted, with costs to abide the event.