We are of the opinion, that there was matter for the jury, upon the question, of the negligence of the defendant's servant, and that of the contributory negligence *Page 533 of the plaintiff. It is not needful to add anything on these heads, to what was said by EARL, C., when this case was last in this court; (65 N.Y., 554.) The testimony is not so changed on the new trial as to make that saying now inapplicable.
We do not think that there was error, in taking the testimony of what was lying on the ground, on the east side of the avenue. If thereby the plaintiff was stopped from going off the railway track on that side, the question of his negligence, was narrowed to his acts or omissions upon the side to which he did turn.
The requests to charge, and the exceptions growing there-out, may not be so curtly dealt with.
There are three classes of ways used for travel, upon which, to a greater or less extent, every one has a right to be, with his own team and carriage. There is the common highway or street; there is the horse railway, laid in the street of a city, town or village; and there is the railway of greater length, through the land, along which cars are hauled by the power of steam. The right of any one to be upon either of these ways is different in its nature and extent; and the duty which one, while on it, owes to others is different; and the duty in the use grows greater, as the right to use gets smaller. Each individual of the entire public, as a general rule and in the absence of especial regulation by law, has as good right to be upon the common street or highway as any other individual thereof; yet each must use this right in a reasonable manner, so as to give a like reasonable use to every other. The rights are equal, and the duties in the use thereof are equally great and pressing. Each must look out for meeting another; and by turning out in time, on such hand, and so far as the law has prescribed, take care to avoid doing harm. One person may choose to go at a slow pace along the way, and has a right so to go. Another may choose to go at a faster pace, and has a right so to go. Yet each must exercise his right, so as not unnecessarily to abridge the use by the other of his right. The one choosing to go *Page 534 fast may turn out and go past the one choosing to go slow, but must keep clear of him in doing it. The one choosing to go slow may keep in the beaten track, and is not bound to give way for the other to pass, if there be room on either hand for the other to go by, without way being given; nor is he bound to give way, where there is not space for him so to do, or it may not be done safely. He has the first right of way, under such circumstances, over so much space of road as his team and vehicle cover at the moment. Hence, he is not bound to look back, or to listen for the coming of another, so as to make clear the way before him. But if, by keeping in his place, he will stop the faster driver from passing, when, by turning aside, without meeting obstruction or danger in doing so, he could give way for passage, he is bound to do so, on being asked to. His duty is summed up, in keeping on his way, avoiding collision with those whom he meets, and in yielding way enough for those behind him to pass, when it is needful and practicable so to do, and he is thereunto requested. His duty has its measure of extent, from the measure of his right upon the road, which is fully equal to that of any one else using it.
The right of every one of the public to be upon the track of what we will call a steam railway, is much more restricted. For the purposes of this case, it may be said to be confined to crossing over that track, where it intersects any of the common streets or highways, and not at all to passing along it, in the direction in which it is laid. It has been held that the engine and car of the railway corporation has the exclusive right to the track as a whole, and the first right to the use of the track at the place of intersection; and that it is the duty of the person drawing near to a crossing, to look each way along the track, and to listen, for the coming of an engine and train. He is not privileged to wait for a signal or request from the driver of the engine, before he sets about to leave the passage clear along the track. As he is also on a common highway, he has likewise upon him the duties of a traveler thereupon, to avoid doing harm to other *Page 535 like travelers. Besides this, he has scarcely any other duty, at that juncture, than to keep entirely off the track, save at the crossing, and there to take care, with all his senses and all his powers, that he do not get in the way of a coming engine and train. He may not stop on it, if a stoppage may be possibly avoided. He may not waste time in crossing. He must be as sure as he may be from sight and hearing, that it is prudent to cross at that moment, and then he must hasten over. The reason of this, springs from the nature, purpose and conditions of travel, upon railways where steam is the motor. The private person has a very limited right upon the railway track. The railway corporation has the exclusive ownership and right of the track, save at the crossings of highways, and in streets. The public requirements are for a high rate of speed, to be attained only with powerful engines incapable of being quickly stopped or controlled. There is an overweening necessity for an absolutely clear track, and a sole and exclusive use of it, the whole time. So, for the public use and the good of the greater number, individual right is of necessity somewhat abridged, and a higher degree of care and attention is exacted from the member of the community then acting singly.
The street railway, used with cars drawn by horses, holds a place between the two other classes. One of the public, has a right to drive his team and vehicle upon the track of such a railway, and to pass along it lengthwise of it, as well as to cross it at the intersection of streets. As others of the public have the same right, he owes to them the same duty, when about to meet, which he does when on an ordinary highway or street. So that he must, some of the time, keep his senses upon what is in front of him. But his and their right to be on the track and passing along it, is abridged from what it would be on a highway. Hence, his duty is enlarged. The railway company has the exclusive right to any part of the track over which, at the time, its horses and car are passing or just about to pass, and all others then upon it there, are bound to leave it, then and there, to the *Page 536 unrestricted use of the company. This right to the use of so much of the public street, modified from both that to the highway and to the steam railway crossing, is because the car can move to and fro only on the parallel lines of rail laid for it, and cannot turn from them; so that others must get out of its way; yet it may not move over the rails, at a rate of speed faster than that ordinarily reached by horses drawing loads of passengers, while the motive power is under such control, as easily to be slackened in speed, and quickly stopped entirely; so that others may also use the track, without risk of harm, if all concerned are ordinarily prudent and careful.
While it is seen that one upon such a track, does not owe so strict a duty, as one about to go upon the track of a steam railway, because his right is larger; yet it is also seen, that he owes a greater duty than one passing along a common highway or street, because his right is smaller. The track is susceptible of a common use, so far as that, when the horses and car of the company are not upon it at any place, it may be there occupied with a team and carriage of ordinary kind, and there be but little danger of harm to any party. Yet, as the power to make the track clear for the corporate use, is solely with the individual temporarily occupying it, and as his right to use it is only when it is clear, there is upon him the duty of clearing it; and as it is essential to the convenient and useful working of the corporate property, that there be no unnecessary stoppage of regular transit, at a rate of speed continuously kept up, it is incumbent upon him that he cause no unnecessary hindrance thereto. This duty is, in the degree of it, just as pressing as that upon the person about to cross a steam railway; and the duty is to be performed, so far as it presses, just as actively. The car cannot turn off the track to go by. He can turn off the track to let it go by. He must do this. He must be ready to do it, when the need arises. The need is not exceptional, as in the case of a driver on the highway as above stated, so that the existence of the exception should *Page 537 by signal alone be brought to the notice of the driver. The need is so constant and so imminent, from the nature and requirements of a street railway, as that it may be, and ought to be, always expected. So that the driver of the common vehicle, should be in constant expectation of the coming of a car, with a constant feeling that he will be at once required to do his duty of leaving the track. Therefore it is due from him, not only that he should turn off from the track when called upon to do so by a servant of the company, but that he should be more active than that, in learning a necessity for getting out of the way of a coming car. To this end, he should listen for whatever signal there may be, either of tinkle of bell or cry of driver; and he should also, while from time to time looking forward to see that his way is clear before him, look behind him from time to time, to see whether he should not soon turn off, so that a car may pass without hindrance or undue slackening of ordinary speed. And if to look back, asks that he turn round his body or his head, that he must do. His right is not so large and perfect upon the track, as it is upon the street surface upon each side thereof. His use of the track, is liable to a lawful interruption from a party having the right to an unobstructed way, which right it is exercising for the public good in part. It may move over the rails at a reasonable and lawful speed. A reasonable speed is the average rate of carriages used to convey passengers by horse power; and that is a lawful speed, in the absence of statute or ordinance on the subject. It also, must use the care of a person of common prudence and caution, heightened by the greater power it has to cause harm if not carefully used. He is bound to keep out of the way when the need, under such circumstances, arises that he should. Hence, there is upon him the duty of learning, when the need has arisen, or is likely to arise; and as it is a duty actively to be performed, he is bound to use all the ordinary means of learning; and all his natural senses are surely a part of those means, and to be used in such way as that they will bring information to him. So that he may *Page 538 not wait to hear a signal of the approach of a car, but he must at intervals look backward for it. He is enjoying a right liable to frequent interruption. It is a condition of his enjoyment of it, that he make no needless delay. He should use his senses to effect that result.
If these rules have not been kept in sight, in the trial of this cause, there has been error.
Requests to charge were made and in terms or practically refused, which put forth the idea, that the plaintiff should have looked back to see whether a car was coming. Some of the requests, presented the idea in terms not open to objection as to the frame of them. We think that the fifth and the eighth did.
The court, in its charge, had instructed the jury, that it was plaintiff's duty to give that attention to the situation of things behind him, that might be called for from a man of ordinary intelligence; while at the same time he was doing his other duty, in looking ahead of him and on both sides; that is, that it was not his positive duty to keep a look-out behind at all times, because it was sometimes his duty to look ahead and on each side, but that he was to give some attention to it, and such attention as the jury thought should be reasonably given, under those circumstances. The court did in this, it may be, by implication, recognize that it was the duty of the plaintiff to keep a look-out behind, some of the time; and had there been no other saying to the jury, the instruction might be held to be sufficient. Was it so understood by the jury? It is not easy for me to say that it was, or that the court meant to be so understood; for at another stage of the instructions, the court said that the plaintiff was not bound to turn around, but must give some attention to the approach of a car in the rear. If it was needful, to see behind, that he should turn around, then, as I have shown, he should have turned around so that he might see; and as it is not easy to perceive how he could see behind, without turning around and looking back, it is not easy to perceive that the court meant that the jury *Page 539 should take from it the idea, that he must look back to see. It particularly said that he need not turn around. Having laid down that negative, the general affirmation, that he must give some attention to the situation of things behind him, would not include that way to sight, and would take in, only other means of giving attention than turning around to do it. I think that the jury hardly went to their room, comprehending the court as meaning, that it was the plaintiff's duty to use his eyesight to learn of the nearness of a car behind him; and that they must have understood the phrase, "some attention," to mean some other way of learning its approach than by voluntarily looking back. The charge, as a whole, did not hold the rule that the plaintiff was bound to look back for a car. The court did refuse to so charge. It was due to the case, that such instruction, if asked for, should have been given; for it was material, upon the question of the negligence of the plaintiff, whether he did at all, or to what extent, use his faculty of sight to learn of the coming of the car. In this regard, I think that there was error, and that the judgment should be reversed and a new trial granted, with costs to abide the event. But my brethren do not all agree with me in this result; though a majority of them concur in the legal propositions, from which I have deduced this conclusion. One of the majority, the Chief Judge, is of the opinion, that the court, did substantially so instruct the jury; and his views on that point are put in writing.