I think the plaintiff in this case should have been nonsuited, on the ground that his own carelessness and negligence contributed to the injury; and such nonsuit would not have been in conflict with the ruling of this court in setting the former nonsuit aside. On the first appeal, the nonsuit was set aside on the ground, as Justice MORGAN said, "that, as appeared from the plaintiff's statement, we must assume that the defendants ran their engine at a dangerous rate of *Page 16 speed, without giving any signal of danger;" and as PORTER, Judge, said, "the nonsuit seems to have been granted on the theory that a citizen who crosses a railway track, at its intersection of a public highway, is an absolute insurer of his own safety against the criminal negligence of a wrong doer;" that "there was no signal from any quarter of any danger. The flagman, whose duty it was to be at his post and display his flag, when an engine was drawing near, did not appear to give the customary warning." Upon such facts the former decision may stand unquestioned.
An entirely different case is now presented, removing the important elements upon which the former decision was based.
It was shown that no flagman had been kept at the crossing for more than a year previous to the accident, and that such fact was well known to the plaintiff; that for six years prior to the accident, the plaintiff had resided on the street about two miles distant from the crossing, and during that period had crossed the railroad track on this street frequently, some days, several times each day; that he had crossed the track at that place about an hour before the accident; saw the cars standing on the side track; knew that engines and cars were often passing both ways, and was perfectly familiar with the location of the track and streets. The proof did not establish that the engine which did the injury, "was running at a dangerous rate of speed," or running "without giving signals of danger," or that defendants were guilty of "criminal negligence." The plaintiff's evidence as to speed was as follows: One witness said "it was running asfast as it could go;" another, "that the engine was backing downvery quick;" another, "it went considerable fast — it passedfast down;" another, "the engine run fast;" another, "it was going pretty fast." All these witnesses were indefinite; they testified in the comparative. What was meant by the terms, "asfast as it could go;" "very quick;" "considerable fast;" "prettyfast;" "fast?" Who can tell? Did all mean the same speed, or did each mean a different degree, more or less? *Page 17 One witness, a female, said, "it was running as fast as it couldgo." How fast that was did not appear; but common knowledge, outside the case, would probably put it at sixty miles an hour. Yet the whole evidence negatives such a construction. How fast then did the engine move? The court was not authorized to say, on this evidence, that it was run at "a dangerous rate of speed," or with "criminal negligence;" clearly not, taken in connection with the defendants' evidence. The engineer and the fireman, who had their attention called to the fact, say the speed of the engine was from four to six miles an hour, not to exceed six; that they judged from practice and experience, and that experienced men could tell, within one or two miles per hour, of the speed of an engine; and another witness, who met the engine after it had passed this crossing, on to a down grade, said it was then going only at the rate of seven or eight miles per hour. One of plaintiff's own witnesses, Stull, shows that, when the rear of the freight train passed, the engine was within fifteen to eighteen feet of the crossing; from where the plaintiff stood to where he was struck was half that distance. Six miles per hour is over eight feet per second.
The plaintiff himself said of the accident: "I was struck on the shoulder and pushed around, and then on my leg; I got a push on the left shoulder, and got a push the other way again, and was then thrown down; the whole was done while I could count one, two, three." On his cross-examination, he testified: "When I was first struck it was a push on the shoulder, at the same time I felt twitched on the right leg, that turned me partly around; I was pushing against the car, and then I was thrown in the middle of the street; there was a little black and blue spot on my shoulder; where the engine struck my left shoulder I felt a little hurt; when the engine struck my shoulder I pushed against the tender by my body; that was then about the middle of the street."
This evidence is conclusive that the engine, when it struck plaintiff, was moving slowly. It entirely overcomes the indefinite statements of plaintiff's witnesses, and demonstrates the *Page 18 unreliability of conclusions and opinions formed during moments of excitement. The defendants' engineer, who had had some experience, testified: "That the effect of a blow from an engine upon the shoulders of a person, at the rate of speed he was running, would be to push the person over, or to turn him around; at a more rapid rate, it would knock him as a bat would a ball; knock him clear." The general knowledge of mankind sustains this view. Had the engine been moving faster than from four to six miles an hour, when it struck the plaintiff on the shoulder, it would have caused something more than "a little black and blue spot." As a whole, the evidence was conclusive, that when the engine struck the plaintiff, it was moving slowly; not over four or six miles per hour; "not at a dangerous rate of speed." So that one of the grounds on which the former nonsuit was set aside (34 N.Y., 622), is not now in the case.
The plaintiff's proofs as to "giving signals," and as to"criminal negligence," which means the same thing, is as follows: The plaintiff himself says he "did not hear the bell ring, except on the long train." "I heard the bell ring on the long train." This establishes the fact that a bell was ringing at the time of the accident. Burkit testified "that there was no bell ringing on the engine; that it did not ring; if it had, he would have heard it." He "heard the bell ringing on the long train as it passed;" he "did not hear a bell at the time of the accident." He did not see the engine until after the accident, and whether its bell was rung after that was of no consequence. Stull said, "I saw the bell (engine); it did not ring; I did not hear it ring; after the engine passed this crossing, it was ringing; it commenced at next street west." The testimony of this witness is confused, but it is quite clear that he only meant to testify that he did not hear the bell of the engine ring, and did not see it after it had passed the crossing, because he testified when the long train was passing east, he could not see the engine on the north track; could see the upper part; and the proof is clear *Page 19 that the rear of the long train passed the engine within fifteen to eighteen feet of the crossing.
Mary Meyer, however, is a more positive witness. She says: "I saw plaintiff coming up the street; a long train went past; I then saw plaintiff again for a minute; then I saw him lying on the track; I saw the engine which run over him; it was running as fast as it could run; the bell was not ringing; I saw it; Iwatched the bell to see if it rung afterwards; at next street it commenced ringing." This evidence does not assert that the bell was not ringing before the engine got to the crossing. Sink testified: "The bell on the engine did not ring; I did not see the bell operate; engine went about twenty steps after the injury, and then commenced to ring." Here is a flat contradiction between this witness and Mary Meyer. She says the bell did not commence ringing until it got to the next crossing. She watched to see. But the evidence of this witness, Sink, is of no importance otherwise, as he says he first saw the engine at the same moment plaintiff cried out, and does not state any thing that took place before.
Frank Stull says he jumped on to the rear of the long train as it passed the crossing, and the engine passed him fifteen or eighteen feet east of said crossing; did not hear the bell ring. The engineer and fireman both testify that four streets east of the crossing where the accident happened, the bell of the engine commenced ringing, and was rung all the way, and every moment continuously; that the fireman rung the bell, the engineer stood beside him with his hand on the throttle valve, both looking west; that neither saw the plaintiff or had any knowledge of the accident until afterwards, and their attention was then called to the subject of ringing the bell and keeping watch, and they distinctly recollect to what they testified. This was affirmative, positive evidence; if untrue, it was willful and corrupt perjury. It was unlike plaintiff's evidence; perjury could not be sustained against any one of his witnesses, if it was established to a certainty that the engine bell was ringing at and before the accident. These two *Page 20 men were unimpeached, their character for truth unquestioned; they stood without contradiction by positive proof. Such evidence should not be disregarded, nor the character of such witnesses permitted to be defamed by the verdict of a jury upon such evidence as plaintiff produced in this case.
This evidence affirmatively proved that the "signals of danger were given;" that "defendants were not guilty of criminal negligence," and distinguishes the case from what it was, when formerly before this court. It removes from the case those elements, but for which, the previous nonsuit would have been sustained. We can therefore examine the question of plaintiff's negligence unembarrassed by the previous decision.
On the former occasion Justice MORGAN said: "Upon the undisputed facts of the case, the plaintiff could have avoided the accident by exercising a little more precaution before he stepped on to the third track. If the freight cars had not intercepted his vision, he must have seen the engine approaching from the east in time to have avoided the collision. It is said that common prudence required him to put himself in a position to see whether there was a train coming from the east, on the third track, before he attempted to cross it."
Of the correctness of this position there can be no question. A person walking can easily control his movements, and by ordinary attention avoid collision with other bodies; and hence in crossing highways, or railroad tracks, is required to give way to avoid teams, engines, or any more ponderous bodies, moving with greater speed, and not capable of such absolute and easy control.
The case of Stubley v. Lond. and N.W.R.R. Co.* (Exchequer, N.Y. Trans., Sept. 11, 1867), was very similar in its facts to this. Defendants' track crossed a much traveled foot way; on each side was a swing gate some distance from the rails; at the west gate, owing to the pier of a bridge, a person could not see a coming train for over thirty yards south, but by going within the line, and within about nine feet of the track, he could see 300 yards each way. The deceased *Page 21 came from the west, to cross, and was detained by a freight train passing south. As soon as it had passed, she proceeded to cross behind the train, and just as she reached the east track, was struck down by an express train from the south, which she had not observed. A motion for a nonsuit was denied.
A rule to show cause why a nonsuit should not be entered having been obtained, the court were unanimous that the rule should be made absolute.
POLLOCK, C.B., said: "I can see no negligence on the part of defendants. The railway is straight for hundreds of yards on either side of the place. The track is of itself a warning of danger to those about to go upon it, and cautions them to see whether a train is coming. There was no evidence to go to the jury."
BRAMWELL, B., said: "I am very clearly of the same opinion. It is said, if a person stands at the west gate he cannot see the train until it is within thirty yards of him; but at that point he does not put his foot on the line, but has got to go a good deal further to reach the level, and when on the level with the line he could see 300 yards in each direction. In crossing the rails this woman was, as people often do, heedlessly going on at the rear end of a passing train without waiting to see whether the other track is clear." "Passengers crossing the rails arebound to exercise ordinary and reasonable care for their ownsafety, and to look this way and that way to see if danger is to be apprehended. And this ordinary care would be sufficient to prevent most accidents, and would have prevented this; but deceased forgot to take account of the possibility of the opposite track being occupied by another train, which had been hidden from view by the passing freight train."
PIGOTT, B., said: "I am of the same opinion. I cannot help saying that the deceased stepped into danger in a thoughtless way, and put herself in peril, and took the chance of what might be coming on the other track.
"(I do not say that in no case ought railway companies to station watchmen at public crossings, but such cases must be *Page 22 exceptions; and there would be no limit to their liability if it were left loosely to jurors in every case to say whether any further precautions ought to have been taken.")
In this case the plaintiff, at rest behind the standing cars on the first and second tracks, was concealed from the view of those having charge of the engine approaching from the east. Suddenly he steps out, and is struck ere he crosses the next track; as he says, "on taking a third step." The engine, therefore, must have been within fifteen feet of the street, when he took his first step. It is singular that he did not hear its approach; but more singular that he first looked east, against the end of the car, where he could not see over ten feet, and then west, and continued looking west, where the track was clear for a long distance, until struck. The most casual look east, after he passed the south line of the standing cars, would have shown his danger, and afforded him ample time to avoid it.
The plaintiff knew that trains were often passing at this crossing. It was his duty, therefore, before starting, to cross the track from his place of concealment, to have ascertained whether an approaching train or engine was coming, and within fifteen feet of the place where he stood; one step in advance, which would have been perfectly safe, and a look east, would have shown him the danger; and his omission of this easy, simple precaution, demanded of all persons before entering upon a railroad crossing, was gross negligence, contributing to the injury, and bars all right of action against the defendant, even though its agents or servants were also negligent.
In the language of Justice MILLER in Wilcox v. Rome,Watertown and Ogdensburgh Railroad Company (39 N.Y.R., 358), decided in this court last June, "a traveler, in crossing a railroad track, is bound to exercise at least ordinary sense, prudence and capacity; and this requires he should use his eyes and ears, so far as he has opportunity. None of the cases adjudicated exonerate him from thus employing his faculties; those relied upon, as sustaining a contrary doctrine, are exceptional." In that case, the intestate *Page 23 was killed on the track in a highway. It was claimed that no bell was rung or whistle sounded, and that the deceased was not negligent in not hearing the train, as it came round a curve near the crossing; that the evidence as to whether those signals were given, was conflicting, and the court assumed they were not given, and thus the question was distinctly presented, whether that omission relieved the deceased from the charge of negligence, which contributed to produce the result; and this court held it did not, and that the court below should have nonsuited the plaintiff.
The learned judge, in his opinion, cited and reviewed the authorities in this State bearing upon the question, and thus concluded: "The effect of the cases cited is to sustain the principle, that where the negligence of the party injured or killed contributed 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 senses of hearing and seeing, to ascertain whether a train is approaching." The only difference in the facts between that case and the one now under consideration, material on this point, is, that in one, if the deceased had looked at all, he would have seen the approaching train; in the other, he had to advance but one step, and he could have seen the approaching engine. In principle there is no difference. As this case now stands, the judgment cannot be retained without overruling the sound and salutary rule laid down in the case ofWilcox v. The Rome, Watertown and Ogdensburgh Railroad Co. and the last decision of this court, in Ernst v. Hudson R.R.Co. (36 How., 84).
It is true, the court held in the latter case, that "when the question, whether the traveler used ordinary care and prudence in a given case becomes so complicated, and involves so many details that honest and intelligent men, acting without bias or partiality, in a single and sincere desire to determine according to the truth, may reasonably differ in their *Page 24 conclusions, then the question should be left to the jury." But here the facts are not complicated, nor involved in details; there are no reasonable grounds upon which honest men should differ. The plaintiff knew he could not see an approaching train from the east; he knew one step forward would place him where he could see, and that step, and that look, he should have taken before rushing forward on to the track.
In submitting the question of defendants' negligence to the jury, the court said: "The question is, whether St. Joseph street is such a populous portion of the city, that it is due to public safety and common prudence, in view of the high powers exercised by the railroad company, passing with the high speed at which they run their trains, that they should keep a flagman at that point. If you think it was an omission of a precaution, which, in ordinary prudence and care, the company was called upon to practice, then it was negligence to omit that duty."
To this there was an exception.
As given to the jury, this charge presents the question whether a railroad is bound to keep a flagman at such street and highway crossings, as a jury, from the amount of travel, may think the public safety requires, in addition to the signals and cautions imposed by statute. It is a question of the highest importance to the public, and to railway companies.
Railroad companies receive their charters, with their franchises, from the legislature. Of the power of the legislature to grant them, there is no question. They are authorized to cross streets and highways with their tracks, and operate their trains thereon with steam or other motive power. The danger from moving trains to travelers at crossings, where the street or highway is on a level with the railroad track, was well known to the legislature; and, as a measure of public safety, it imposed upon such corporations the duty of putting up notices at all crossings, and of giving signals upon all moving trains and engines approaching crossings. These obligations are to be observed. All omissions are at the peril *Page 25 of the company; but the duty of keeping a flagman, stationed at any particular crossing, is not a duty imposed either by statute or by the common law.
The common law imposes upon railroad corporations, when running their engines or trains over crossings, the exercise of reasonable care and diligence, to prevent injury therefrom to travelers on the road. The observance and performance of all the duties and obligations imposed by statute may not alone be sufficient. Cases may arise, where the corporation will not be exonerated from liability, by a mere compliance with these statutory requirements. These requirements are merely cumulative, and companies are bound to use such other reasonable care and precautions as the circumstances of each case may require. And this question of reasonable precaution is always a question for the jury; and the fitness of any particular expediency suggested, must depend upon the particular circumstances and exigency of each particular case. (Bradley v. The Boston and MaineRailroad, 2 Cushing, 539; Linfield v. Old Colony Railroad, 10 Cushing, 562; Bilbee v. Railroad Co., 114 Eng. Com. Law, 583.) In the latter case, this question was distinctly presented. The plaintiff had a verdict, and the court, on its affirmance, said: "Without imposing on railroad companies larger burdens than the legislature intended they should bear, or laying it down as a rule, that they were bound to place guards (flagmen), c., it placed its decision on the express ground, that the circumstances of the particular case should have induced in the company the exercise of more vigilance than was imposed by statute, and therefore it was properly left to the jury to say, whether the company had been guilty of negligence." This I hold to be the true rule.
In this case, the charge was erroneous in this. Instead of submitting to the jury the question whether, from the facts and circumstances of the case, the defendant had failed to exercise ordinary prudence and reasonable care, amounting to negligence, they were instructed in substance, that the question was, whether St. Joseph street was such a populous portion *Page 26 of the city, "that it was due to the public safety, that the company should keep a flagman at that point; and if the jury thought it was, then it was negligence to omit that duty." This was calculated to withdraw the attention of the jury from the real question (the negligence of the defendant in respect to the particular transaction, under all the facts and circumstances attending it), and placing it upon a particular act, and the duty of the company to do that particular act. Whether there is negligence, depends upon the degree of care required and given in each particular case, irrespective of any particular mode. Whether the care was by a flagman, by gates, or by any other equivalent mode, is of no importance. If it were established as law, that the omission of any particular act — which, from the amount of travel at crossings, a jury might think required by the public safety — was negligence, a railroad company would never know when it was safe from that imputation. For, no matter how carefully it observed the requirements of the statute, or conducted itself in other respects, if it omitted any one act, which the caprice, or sympathy, or prejudice of a jury might think required for the public safety, the omission would constitute negligence, and subject it to all the consequences. For these reasons, and in this particular, I think the charge erroneous.
As to the other exceptions to the refusal of the judge to charge, I concur with the opinion of Judge GROVER.
The judgment should be reversed, and a new trial granted, costs to abide the event.
* (Law Rep. 1 Exch. 13.)