By the Law of 1854, chapter 282, section 7, it is provided that where a railroad shall cross any traveled public road or street, on the same level with the railroad, the engine bell shall be rung, or whistle sounded, at least eighty rods from the crossing, and that the bell shall be kept ringing, or that the whistle shall be sounded at intervals until the engine shall have crossed the road, and for neglect to comply with these requirements the railroad company is made liable for all damage sustained by any person by reason of the neglect.
The purpose of this provision is the protection of persons actually crossing a railroad track, and also of persons approaching such a track. (The People v. N.Y.C.R.R. Co., 25 Barb., 199; Harty v. Cent. R.R. Co. of N.J., 42 N.Y., 471.) The warning is required to be given so that all persons lawfully using a public highway may keep out of the way of danger at railroad crossings; danger not only from collision at the crossings, but also from the fright of horses by passing trains. The law makes it negligence not to give the warning, and then imposes a liability for all the damage which can properly be attributed to such negligence.
Here we must assume that the statutory warning was not given. Several witnesses swear that they were in a position to hear it if given, and that they paid attention, and did not hear it, and although the defendant furnished quite direct and positive evidence that it was given, it has always been held that in such cases there is a conflict of evidence which is to be settled by a jury. The defendant was therefore *Page 323 guilty of negligence, and the only other question is whether this accident was occasioned solely by such negligence.
The jury were authorized to find that the plaintiff was free from negligence. She was riding in a buggy, she herself driving. She testified that she was accustomed to drive; that she had a steady horse, and that she approached the track with great circumspection, listening and looking for the train, and that in consequence of certain obstructions she did not see the train until she was within about three rods of the crossing. She was then in a place where she could not turn around; her horse became frightened and restive; she backed it about three rods, and then at a loud blast of the whistle for the first time given at the crossing, it turned around, and she was thrown out of the buggy and injured. It may be that she did not act with the best judgment after the peril was upon her, but she did the best she could, and that is all the law required of her. A party who places another in peril cannot complain if he does not exercise the best judgment in extricating himself from such peril. A party thus in peril must do the best he can to save himself, and if he fails, the party who placed him in peril must be held responsible. The jury in this case were authorized to find that if the warning had been given, the plaintiff could and would have stopped in time to escape danger, and that because it was not given, she was lured on, without any fault on her part, to the place of danger where she was injured. And these facts authorized their verdict.
There was no error in the charge of the judge, and the judgment must be affirmed.
All concur, except RAPALLO, J., absent; HAND, J., not voting.
Judgment affirmed. *Page 324