There is some apparent conflict in the opinion of judges, as to the degree of negligence, which will subject a railroad company to liability, in case of injury to the wayfarer, at a highway or street crossing. *Page 27 The discrepancy, however, in all these cases, is more in words than in reality. In some of the cases, it is said, the railroad company is bound to exercise the highest degree of care and prudence; while, in other cases, it is said, ordinary care is all that is required. A careful attention to the cases themselves will show, that there is no conflict in principle between them. It is held, in the case of Kelsey and others v. Barney andothers (2 Kern. R., 425), that the law requires every person traveling upon a highway, or navigable public waters, to exercise ordinary care to avoid doing injury to others. This was the case of a collision between two vessels, in entering the harbor of Cleveland; but the rule, whether the highway be upon the water or the land, is the same. There are many cases affirming the same rule, where each of the parties have an equal right to use the highway. While, in the case of Cook v. The New York CentralRailroad Company (3 Trans. Appeal Cases, 8), it is said by the chief judge of this court, in delivering the opinion of the court, that the rule is quite well settled, that, in the management of their road and machinery, a railroad corporation is bound to use the utmost care and vigilance to avoid the dangers attending a collision. Applied to the case then before the court, the rule laid down by the chief judge was strictly correct. The injury in that case was to a traveler, at a street crossing, in the city of Buffalo. If we only bear in mind that negligence is the absence of care, according to circumstances, no fault can be found with the language of the judge in this, or of the opinions of other judges, in similar cases. It is only an application of an elementary rule of law, that great danger demands higher vigilance and more efficient means to secure safety. In the case of a railroad train, crossing the street of a populous city, where persons and vehicles are constantly passing the street, the well settled rule demands higher vigilance and increased caution, on the part of those who control the moving train, than is required in crossing a highway in the country, where a traveler is seldom encountered. So too, when a vessel enters a harbor in a dark night, where vessels are constantly *Page 28 coming and going, the very highest degree of vigilance and care is required to avoid a collision; and yet the rule of ordinary care is the rule governing such a case. This only shows, that the degree of vigilance and care, which the law exacts, as implied by the requirement of ordinary care, must vary with the probable consequences of negligence. Under some circumstances, a very high degree of vigilance and caution is demanded by the requirement of ordinary care. When the consequences of negligence will probably be serious injury to others, and when the means of avoiding the infliction of injury upon others are completely in the party's power, ordinary care requires, in many cases, almost the utmost degree of human vigilance and caution. (Kelsey v. Barney, 2 Kern. R., 425; Johnson v. The Hudson River Railroad Company, 6 Duer, 633.) Judge SLOSSON, of the Superior Court, has well stated this rule, in the latter case. He says, the company is bound to use a degree of care and vigilance, in respect to the means whereby accidents or injury to others, using the same thoroughfare in common with themselves, may be avoided, which is proportioned to the dangerous character of its business, or of the mode and means of conducting the same, while the foot passenger is bound to that degree of caution, which persons, thus exposed on a common thoroughfare ought, in common prudence, to exercise. This prudence may, in both, be called ordinary, in the degree. This is but an acknowledgment of the familiar rule, that, in proportion to the danger, will arise the degree of vigilance and caution which a person must use.
The captain of a vessel, who enters a harbor in a dark night, where vessels may be expected to be passing and repassing, puts up his lights, stations his most vigilant watchman at the bow, and, both he and his crew, are all awake to the dangers and perils of his situation. You ask him why all this bustle and precaution, and he will tell you, we are entering the harbor, and common prudence requires it to avoid doing injury to others and running into danger ourselves; and yet, as to the rules of liability for injury to *Page 29 others, he is only responsible for injuries resulting from ordinary neglect. There is no inconsistency in terms here, in saying the law exacts the very greatest caution and vigilance under such circumstances, and yet only holds the party responsible for ordinary care. We have only to pay attention to the very definition of ordinary care, found in the elementary books, to make this matter clear from the imputation of inconsistency.
Ordinary diligence is the exercise of that care, which every person of common prudence bestows upon his own affairs or concerns. Now the man of common prudence bestows the very highest degree of vigilance and care upon his own affairs, when danger environs him and he apprehends impending disaster. And why? Because common prudence requires it. The man of common prudence acts precisely the same, when engaged in any employment eminently dangerous to others; and ordinary care and common prudence require that he should. The rule undoubtedly is, so far as street crossings in cities are concerned, whatever may be said of the rule in other cases, that the utmost care and vigilance to avoid collision and injury to others must be exercised in running the cars across such street crossings. The corporation cannot claim exemption from liability, simply by complying with the statute requirement. These requirements of the statute, as to the ringing of the bell and blowing the whistle, do not take away or in any manner lessen the common law duties. They must still use reasonable care and diligence, in other respects, when running trains over crossings, if the circumstances of the case render the use of other precautions reasonable. This very question was well considered by Chief Justice SHAW, in the case of Bradley v. The Boston and Maine R.R. Co. (2 Cush. R., 540), and so decided in that case.
This court expressly held the same, in the case of Brown v.The New York Central Railroad Company (34 N.Y.R., 404) If other precautions are reasonably required, under particular circumstances, they must be observed, or the railroad *Page 30 will be held liable for injuries, which result from their non-observance. The circumstances of danger may be so great, that a flagman, or watch at the crossing, will alone excuse them. This was held in Bilbee v. The London, Brighton, and South CoastRailway Company (18 Com. Bench. R.N.S., 583); Stapley andothers v. The same company (Law. Rep., 1 Exch., 21, 1865 and 1866). This duty has been assumed, in many instances, at the street crossings in cities, and has, I think, been quite extensively observed by these corporations at crossings, when there was reasonable apprehensions of danger of collisions from the constant passing and repassing of those using the street. The point is made in this case, and there is certainly force in this argument, that conceding that additional precautions, beyond those imposed by statute, on account of special dangers in certain cases, are required by those corporations at the street crossings, yet the right to select and determine what those precautions shall be, belongs to the corporations, and that courts have no right to prescribe what these precautions shall be. If this point had been distinctly raised upon the trial of this case, the question perhaps might be a troublesome one in the case, although I doubt whether it would be tenable then. No such question seems, however, to have been presented to the mind of the judge upon the trial. This idea of placing flagmen at these dangerous crossings, in populous towns, is neither an invention or prescription of the courts. It had its origin with the railroads themselves, and was adopted, I presume, because they regarded it as the safest and best precautionary measure; and it has been so long in use, by the railroads themselves, that courts have assumed and treated the flagman, in many cases, as the safest and best means to be employed, where additional precautions, beyond those imposed by statute, are reasonably required by reason of the increased danger, in certain cases. These defendants had, before this occurrence, regarded it as their duty to place a flagman at this very crossing; but they had withdrawn him some time before this injury was inflicted *Page 31 upon the plaintiff; and the absence of the flagman, at the time of this occurrence, is spoken of in the opinions of both of the judges, who delivered opinions in this very case, setting aside the nonsuit granted on the first trial of the cause; and they place the omission to have a flagman at this street crossing, among the circumstances constituting negligence on the part of the defendants. The omission of the flagman, at the crossing, is commented on, as one of the indicia of the defendants' negligence, in the case of Ernst v. The Hudson River RailroadCompany (35 N.Y.R., 28). In the case of Wilds v. The HudsonRiver Railroad Company (29 N.Y.R., 315, 325), Judge DENIO said: "I will assume, that it was the duty of the defendants to place a person at the point of intersection, to warn persons against crossing, when trains were approaching." This was done, and the flagman did his duty, c. (See 33 Barb. R., 503.) In the case ofCook v. These same defendants, the omission to have the flagman stationed at the crossing, was commented upon, and made a point upon the defendants' negligence, in the opinion of the chief judge; and his opinion was adopted by the court, while Judge GROVER'S opinion, which contained the very same argument that is presented in his opinion in this case, was not sustained. In the case at bar, the defendants' counsel requested the court to charge the jury, that the absence of a flagman at this point, is no evidence of negligence on the part of the defendants, and excepted to the refusal of the judge so to charge. The defendants' counsel excepted to that portion of the charge, in which the court instructed the jury that, if they think, under the circumstances, a flagman was called for by ordinary prudence at that point, the omission to supply one was negligence. It will be seen that the judge refused to charge absolutely, that the absence of a flagman was no evidence of negligence, but did charge them that, if they thought, under the circumstances, a flagman was called for by ordinary prudence at that point, the omission to supply one was negligence. Here was no ground of exception stated, nor was the attention of the judge called to the matter now urged, *Page 32 that it belonged to the defendants to choose their own means of precaution, if additional precautions were required.
The probability is, the suggestion never occured to the counsel or the court upon the trial. But was the submission of this question, in the form in which the judge submitted it, error? The substance of the charge is, that if a flagman was called for by ordinary prudence at that point, the omission to supply one was negligence. This charge, it seems to me, is not objectionable. In the first place, we cannot shut our eyes to the many reported cases in this State, where, at these street crossings in cities, the flagman has been an element in the case. We may take judicial notice, I think, of what every one, who travels upon the railroads, cannot but see and know, unless he shuts his eyes, that it is a very common thing for these corporations, to station flagmen at dangerous crossings in cities and large towns, where many people are expected to be crossing the railroad in the use of the street, both with vehicles and on foot.
This has been employed by the defendants themselves to such an extent, that they have given the courts a very strong inclination that, when precautions additional to those imposed by the statutes are required, the flagman is the most judicious means that can be employed. The courts, as I have before said, have not presumed to be wiser than railroad men, as to the precautionary measures, which it is expedient to employ, under circumstances like those presented in this and similar cases. They have but acted upon the suggestions of the managers of these railroads themselves, in assuming that a flagman was a proper and wise selection out of all the precautionary measures, that could be suggested to supply the demand for additional precautions, in cases where they are required. The right of the court to select any prudent measure of precaution and submit the question to the jury, whether it was not called for by the particular circumstances of the case, can hardly be regarded an open question in this court. In the case of Johnson v. The HudsonRiver Railroad Company (6 Duer R., 636), it appears that Judge DUER, *Page 33 after stating to the jury the measure of diligence and care, which a railroad company was bound to exercise, while using the street, which the public also had a right to use, charged the jury that, if the use of bells and lights was a measure that the prudence and foresight, which they were bound to exercise, ought to have suggested, and if, by such use, disastrous accidents would probably be avoided, the omission to use them, if proved to the satisfaction of the jury, was culpable negligence; and it was for the jury to say, whether, to this culpable negligence, the fatal accident that had given rise to the action, might not justly be imputed, and he submitted both questions to the jury, who found a verdict for the plaintiff for $4,000, and this charge was sustained in the General Term, and by this court, on appeal. (6 Duer R., 633, and see pages 643, 644), where this objection is well answered. The judgment of the Superior Court was affirmed, and Judge DENIO, in delivering the opinion of the court, holds that no error was committed in leaving the question to the jury, or in the manner in which it was submitted. (20 N.Y.R., 65.) There is no law imposing the specific duty to place bells on the horses and lights upon the cars in a dark night, and yet the court held, in that case, they must be supplied, if common prudence required it. I entertain no doubt therefore that, if common prudence requires a flagman to be placed at such a street crossing, as the one where this injury was inflicted, the requirement must be complied with. The place, where this accident occurred, was one of great danger, as the evidence in this case shows, while the company kept these two trains of empty box cars standing upon the two first tracks. They undoubtedly had the right to leave these cars standing upon their track as long as they pleased, but, if the danger to those using the streets is thereby increased, they must employ all reasonable additional precautions to render the crossing safe, so far as the highest degree of caution and foresight may suggest, and are guilty of culpable negligence, if they do not. (6 Duer. R., 633; 20 N.Y.R., 66; McKay *Page 34 v. The New York Central Railroad Company, 35 N.Y. Reports, 75.) This latter case holds that, where the railroad company had obstructed the view, in the approach to their road, by the piling of wood, so that an approaching train could not be seen by the traveler, until he is upon the track, that such traveler will not be deemed guilty of negligence in not stopping his team, and ascertaining whether a train might not be approaching.
This case seems to me to have been essentially disposed of, when it was before this court, on a former occasion. The case was held to be one for the jury, and as it was properly submitted, the judgment should be affirmed. (34 N.Y.R., 622.)
MURRAY and DANIELS, JJ., were for reversal on the ground stated in the opinion of GROVER, J.
WOODRUFF, for reversal on the grounds stated in his opinion in the Grippen case infra.
HUNT, Ch. J., and MASON, J., were for affirmance; LOTT, J., not voting.
Judgment reversed and new trial ordered.