As this court can review questions of law only, I cannot concur in the prevailing opinion. The conclusion that the plaintiffs' intestate was guilty of contributory negligence, as a matter of law, is not sustained by the decisions of this court. The question of contributory negligence is generally a question of fact to be determined by a jury, and is not within the province of the court. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can determine that question. (Lane v.Atlantic Works, 111 Mass. 136; Weber v. N.Y.C. H.R.R.R.Co., 58 N.Y. 451; Davis v. N.Y.C. H.R.R.R. Co., 47 N.Y. 400;Hackford v. N.Y.C. H.R.R.R. Co., 53 N.Y. 654.) The instances in which such determinations have been sustained have been exceptional cases in which the court has adjudged that such negligence was conclusively established by evidence which left nothing, either of inference or of fact, in doubt or to be settled by a jury. (Massoth v. D. H.C. Co., 64 N.Y. 529;Casey v. N.Y.C. H.R.R.R. Co., 78 N.Y. 518; Stackus v.N.Y.C. H.R.R.R. Co., 79 N.Y. 464; Shaw v. Jewett, 86 N.Y. 616;Cosgrove v. N.Y.C. H.R.R.R. Co., 87 N.Y. 88; Sherry v. N.Y.C. H.R.R.R. Co., 104 N.Y. 652; Greany v. LongIsland R.R. Co., 101 N.Y. 419; Palmer v. N.Y.C. H.R.R.R.Co., 112 N.Y. 234; Feeney v. Long Island R.R. Co., 116 N.Y. 375;Swift v. S.I.R.T.R.R. Co., 123 N.Y. 645; Oldenburg v.N.Y.C. H.R.R.R. Co., 124 N.Y. 414; Doyle v. P. N.Y.C. R.R. Co., 139 N.Y. 637; Graham v. Manhattan Rway. Co.,149 N.Y. 336.)
Where no presumption of law exists, the process of ascertaining one fact from the proof of another is within the exclusive province of a jury. It is not indispensable that the particular circumstances relied upon to prove a fact be contradicted *Page 27 in order to make a disputed question of fact. If other circumstances appear in antagonism to the alleged fact, it is for the jury to determine whether the fact is proved. The jury is not only to pass upon the conflicting evidence, but when different inferences may be drawn from the evidence or the conduct of parties, they are to be drawn by the jury and not by the court. (Justice v. Lang, 52 N.Y. 323; Hazman v. Hoboken L. I.Co., 50 N.Y. 53; Powell v. Powell, 71 N.Y. 71; Hart v.Hudson River Bridge Co., 80 N.Y. 622.) That different inferences might be drawn from the facts and circumstances of this case becomes quite apparent when we consider that the jury, the trial court, and all the judges who have passed upon the question save one have reached an opposite conclusion from that of the majority of this court.
That in this case the evidence was sufficient to justify the jury in finding the defendant negligent, is assumed in the prevailing opinion and cannot be denied. To reach the conclusion that the plaintiffs' intestate was guilty of contributory negligence, it is assumed that the proof was undisputed that the head of his horse was within six feet of the nearest rail when the decedent looked towards the coming train, and that looking past the projecting window at the station he could have seen it approaching at the distance of about two hundred feet. But from the evidence the jury was justified in finding that he did not see the train until his horse's head was within two feet of the nearest rail. If he could then have seen it a distance of two hundred feet, there would have been less than three seconds of time before it reached the crossing if running at fifty miles an hour, as the jury was warranted in finding. The proof also discloses that the intestate arose from his seat, seemed about to jump from his wagon, but instead changed his lines, whipped up his horse, and attempted to cross the track, when he was struck by the train and killed. From this proof this court infers that the intestate was not in imminent danger, that no alternatives were presented to him, and asserts that he could have stopped his *Page 28 horse, and if he had he would not have been in danger whether he remained in the wagon or jumped to the ground. That the intestate, who must have known as much of his horse, its habits, safety and reliability as a stranger, would have attempted to cross the track, or jump from his wagon, if the horse had been safe to stand within two feet of the track facing a rapidly passing train, or could have been safely turned without coming in contact with it, is not to be conjectured or surmised under the circumstances disclosed in this case. I know of no authority which permits this court to draw those inferences from the proof, instead of relying upon the findings of the jury. The proof furnishes no incontrovertible inferences to that effect. The conclusion that the intestate was not in danger is based upon the theory that his horse was old and slow. That inference might perhaps have been drawn by the jury, but cannot, I think, be held as a matter of law. This horse, said to be old and slow, was standing two feet from the railroad track, upon which there was a train running fifty miles an hour. I cannot assent to the proposition that even such a horse could have been stopped and would have stood within that distance from the track, where the projecting car would have nearly, if not quite, reached him, and there would have been no apparent danger. The common experience of those familiar with horses, their use, their habits and their dispositions is that it is precisely that kind of a horse which, when frightened, becomes utterly unmanageable and often serious if not fatal results follow. Hence, the danger of stopping may have been equally as great as the attempt to cross. To hold otherwise as a matter of law seems to me unjustifiable. Again, how this court is able to determine that the decedent could have made no serious comparison between the danger to be apprehended from the fright of his horse and from a collision with the train, I do not understand. That he did is obvious, as his first determination evidently was to jump from the wagon. This not only shows that more than one alternative was presented to his mind, but that he appreciated and was confused by the imminent peril of the situation. *Page 29
If it be suggested that the decedent might have turned his horse and thus escape all danger, we find no basis for that conclusion as a matter of law. With a horse standing within two feet of the rails while a train was approaching which projected nearly that distance beyond them, without knowing the circle within which the wagon might be turned, it is quite difficult to say that the decedent might have turned his wagon without its coming in contact with the approaching train.
The jury was justified in finding that by its negligence the defendant lured the intestate into a place of imminent danger. Its train was running at fifty miles an hour, a speed at which it was never seen to pass that place before. It usually had a flagman at the crossing when it passed, but when the accident occurred no flagman was there. No whistle was sounded, no bell rung, and no notice whatever was given of its approach. As the intestate neared the crossing his view was so obstructed that he could not discover the on-coming train until he was in a place of great peril. His situation was one to excite fear and terror, and would naturally paralyze the mind and cloud the judgment of the most reckless or brave.
It is obvious that the decedent was placed in a situation where he was required to adopt one of at least three perilous alternatives: 1. To attempt to pass over the track before the train reached the crossing; 2. To stop at a place where the passing cars would have nearly, if not quite, come in contact with the head of his horse; or, 3. To attempt to turn around and thus try to avoid a collision. To be successful, any of these attempts must be performed in less than three seconds. That any of these alternatives would have prevented the accident cannot be held as a matter of law under the circumstances established. This court may conjecture or speculate in regard to what would have been the result if some other course had been pursued, but there is no such incontrovertible proof of the probable result of such a course as to present a question of law.
A person who, through the negligence of another finds himself in a position of danger, cannot be held guilty of contributory *Page 30 negligence because he does not act in the emergency in the best way to avoid the danger. That which may appear to be best to a court examining the matter afterwards at leisure, and upon a full knowledge of the facts anterior and subsequent, is not necessarily obvious, even to a prudent and skillful man upon sudden alarm. It would be absurd to hold that a person in imminent danger is negligent because he fails to take every precaution that a careful calculation would afterwards show he might have taken. The emergency in which the decedent was placed was one for which the defendant was responsible, and, hence, if the former did not exercise the presence of mind and judgment that an ordinarily prudent man would have exercised under ordinary circumstances, his acts cannot be held to constitute contributory negligence as a matter of law. (Buel v.N.Y.C.R.R. Co., 31 N.Y. 314; Filer v. N.Y.C.R.R. Co.,49 N.Y. 47; Coulter v. A.M.U.E. Co., 56 N.Y. 585; Lewis v.L.I.R.R. Co., 162 N.Y. 52.) This is the rule, even though it should transpire that no injury would have been sustained had the decedent adopted some other course. (Twomley v. C.P., N. E.R.R.R. Co., 69 N.Y. 158; Bernhard v. R. S.R.R. Co., 1 Abb. Ct. App. Dec. 131; Rexter v. Starin, 73 N.Y. 601; Wynn v. C.P., N. E.R.R.R. Co., 133 N.Y. 575.)
That a person approaching a railroad crossing is not required as a matter of law to stop before attempting to cross, but that his omission to do so is a fact for the consideration of the jury, is well established by the decisions of this court. (Davis v. N.Y.C. H.R.R.R. Co., 47 N.Y. 400; Dolan v. D. H.C. Co., 71 N.Y. 285; Kellogg v. N.Y.C. H.R.R.R. Co.,79 N.Y. 72; Stackus v. N.Y.C. H.R.R.R. Co., 79 N.Y. 464,467; Judson v. Central Vermont R.R. Co., 158 N.Y. 597.)
It seems to me plain that under the authorities it is impossible to properly hold that the question of the decedent's contributory negligence was a question of law. The questions were, first, what was ordinary care under the circumstances established upon the trial: second, if the intestate was not *Page 31 placed in a position of imminent danger by the negligence of the defendant, did the conduct of the decedent come up to that standard; and, third, was he placed in a position of imminent peril? No standard has been fixed by law which is applicable to the facts and circumstances of this case by which these questions can be determined, and, therefore, they were for the jury and not for the court.
I think the judgment should be affirmed.
PARKER, Ch. J., O'BRIEN, BARTLETT and HAIGHT, JJ., concur with LANDON, J., for reversal; VANN, J., concurs with MARTIN, J., for affirmance.
Judgment reversed, etc.