It is not suggested by the appellant that there was any misdirection by the trial judge, nor but that the defendant was guilty of negligence in not stopping the train. The appeal rests upon the single proposition that the attempt of the plaintiffs' intestate to get upon the moving train was an act of negligence contributing to his injury, and therefore sufficient, as matter of law, to defeat a recovery. On the contrary, it seems to me that it was merely one act among others in the case, and to be considered with all the attendant circumstances. It may derive its explanation from the conduct of the defendant, and it was, therefore, for the jury to say how far the decedent was influenced by it upon the occasion of the accident. (Bucher v.N.Y.C. H.R.R.R. Co., 98 N.Y. 128; Filer v. Same, 49 id. 47; Glushing v. Sharp, 96 id. 676.) And if they found that the conditions which led him into danger were of the defendant's own creation, both common sense and justice forbid that it should be allowed to withhold compensation.
If, on the other hand, the danger, notwithstanding the solicitation of the conductor, was so manifest that in the exercise of ordinary prudence the intestate should have observed it, or, if observing it, he went recklessly to the car, he should suffer the consequences of an injury brought on by himself. Many circumstances are to be taken into account in answering these questions, and if inferences are to be drawn, not all one way, then no tribunal save a jury is authorized to pass upon them.
The appellant relies upon the single fact that the train was in motion; that, as appears from the cases referred to, is not enough to exonerate the defendant. Those decisions show that an intending passenger may attempt to board a moving train, and, if injured in doing so, may still recover; that is, the act is not negligent of itself. The speed of the train is, in all cases, to be considered; but this should be done in connection with the conduct of the train servants, and the age and activity of the traveler, before his action upon the occasion in question can be characterized. (Eppendorf v B.C. N. *Page 380 R.R. Co., 69 N.Y. 195; Filer v. N.Y.C.R.R. Co., 49 id. 47;Burrows v. Erie R. Co., 63 id. 556; Hickey v. B. L.R.R.Co., 14 Allen, 429.)
It is of the greatest importance, therefore, to ascertain the speed of the train. What was it? No exact testimony was given. But the train left Cooperstown at the usual time; the distance to Phœnix was two and one-half or three miles only, and the train made the run to that point without steam. Phœnix was a regular passenger station where all trains were advertised to stop. The conductor intended to stop at that station, and was trying to do so. At about eighty rods distant the whistle was blown for the station, and the brakes applied continually, until the train, in fact, came to a stand-still a short distance beyond the platform, twenty or thirty feet, or, as one witness says, fifty feet, and would have stopped sooner, or at the station, except that there was only one brakeman, and the brakes were defective. All that time the conductor stood upon the platform. In that position and while eight or ten rods distant, he leaned out by the side of the car, looking forward, and saw Hunter upon the station platform, facing the incoming train and evidently waiting for it. When within eight or ten feet, the conductor said to him: "Are you going? If you are, jump on." He reached out his hand and foot, tried to get on the car, and in some way was caught and killed. These are circumstances about which there is no doubt: the engine moving without steam; the conductor intending to stop at the station; the whistle blown for the station as notice of that intention; the brakes applied; the train actually slowing up; and the conductor, expecting a passenger, calling him to get on. The effort was made to do so, and it failing, the train was actually stopped within a few feet from the place where the accident occurred. Do not these circumstances all tend to show, and permit the inference, that the train was moving very slowly? There was the intention to stop; the conductor's expectation to take his passenger; and the actual stoppage of the train just after the accident occurred. *Page 381
But the opinions of witnesses are referred to as showing the contrary. In view of the circumstances I have exhibited, those opinions may be taken with many grains of allowance. One witness says: "I should think the train was going about six or eight miles an hour." He was a by-stander; his attention was not called to the speed of the train at the time in question. But he was the plaintiff's witness and his evidence is in the case for what it is worth. What is it worth? About six or about eight — at once a difference of two miles. The engineer says: "At the time the train passed the station, I should say it was going from four to six miles an hour." Wicks, the fireman, testifies: "I would say from four to six miles an hour, slacking all the while." The phrase used by all the witnesses in expressing an opinion is in the highest degree indefinite; and their testimony must be weighed in view of the circumstances to which I have alluded. The rate of speed was to be determined as a fact. No witness spoke from accurate information, but gave his opinion merely; the conductor not testifying to it. Observers are competent witnesses, but few are able to say with even tolerable accuracy the rate of speed at which a train at any given moment is moving. In this case their attention was not directed to it, and the weight of their testimony was to be determined. The court cannot say from it that the train was, as a fact, moving at a given rate. A jury might say the speed was less than four miles an hour, as much less as the circumstances alluded to might indicate to them, and not necessarily faster than one might walk. The deceased was a young man, and, so far as appears, with the active habits of that age. He stood upon the platform of the station, mentally prepared to take the train, with every reason to expect that it would stop as usual. It cannot be said, as matter of law, that a man of ordinary prudence would not have yielded to the direction of the conductor, nor can it be said that to him, in view of the circumstances, the train was moving at a palpably dangerous rate. He did not attempt to board the train by reason of his own impatience, but upon the invitation of the defendant's servant. It *Page 382 is to be considered whether this direction of the conductor was not only a practical expression of his belief that the step might be taken in safety, but also as a strong expression of his opinion that the movement of the train was slow and within the bounds of safety. All these things might properly lead a jury to the reasonable belief that to the decedent the train did appear to be moving slowly, and, moreover, that it was, in fact, brought to such a point as only prevented complete inertness or stoppage — a resource of engineers to avoid the necessity of overcoming the vis inertia of a heavy train at rest. At any rate the defendant ought not to be permitted to assert that the intestate did not exercise what now it seems would have been better judgment in the condition in which he was placed by its acts. That he did not act prudently should not be adjudged as matter of law, nor can a court say to what extent his action was governed by what might reasonably be inferred from that of the conductor.
The questions were for the jury and were properly submitted to them. I think the judgment which followed their verdict should be affirmed.
All concur with PECKHAM, J., for reversal, except DANFORTH, J., dissenting.
Judgment reversed.