This action was brought to recover damages against the defendant for negligently causing the death of the plaintiff's testator, and has been tried four times. Upon the first trial, the plaintiff was nonsuited; a new trial having been granted, the cause was tried a second time, and the plaintiff recovered $2,500, upon which judgment was entered. This was reversed in the Court of Appeals, and a new trial ordered. On the third trial, the plaintiff was nonsuited in accordance with the decision of this court. This was affirmed at the General Term; but, on a second appeal to this court, the judgment of the Supreme Court was reversed, and a new trial ordered. On the fourth trial, the plaintiff had a verdict for $5,000. The judgment upon this verdict having been affirmed at the General Term, the defendant appeals to this court.
The judge at the trial charged the jury, that the first question which they were to consider was, whether the defendant *Page 62 was guilty of negligence which caused the death of the plaintiff's testator. On this question there was conflicting evidence. The plaintiff's witnesses, and some of the defendant's, testified, that they did not hear the bell or whistle, previous to the accident; while the engineer, fireman, and track master, testified, that these signals were given. So that this question, relative to the defendant's negligence, was properly left to the jury. The judge added, if they should come to the conclusion, that the defendant was guilty of negligence, then the question would be, was the deceased free from negligence which contributed to the accident? The defendant's counsel asked the court to charge, if the deceased, by the use of his ordinary faculties, could have discovered the train, and could have avoided the injury, he was guilty of negligence, and could not recover; and this the court accordingly charged.
The counsel for the defendant moved, at the conclusion of the plaintiff's evidence, for a nonsuit, on the ground — first, that there was no proof of negligence on the part of the defendant; and, second, that it appeared that the negligence, or want of care, of the plaintiff's testator, contributed to the injury. The motion was denied. It was, however, renewed at the close of the whole evidence, and was then, also, denied. As I have already intimated, there can be no doubt, that the question regarding the defendant's negligence was properly left to the jury. The second ground of the motion for the nonsuit is more plausible. On the legal proposition which this latter question involves, I cannot discover any difference of opinion between any of the judges by whom the case has been considered. All seemed to assume, at the trial at the General Term, and in the Court of Appeals, that the plaintiff must make out a clear, affirmative case of negligence on the part of the defendant, unaccompanied by any negligence on the part of the deceased, that contributed to the injury; and the question now is, was the negligence of the deceased so obvious and uncontradicted by the evidence, as that nothing was left on this point for the consideration of the jury? I cannot find any substantial difference in the evidence *Page 63 bearing on this point adduced at the trial before the last, and the evidence adduced at the last trial. There were some more witnesses examined on behalf of the defendant; their evidence, perhaps, tended to contradict that of the plaintiff; but by no means made it more manifest that the judge should have nonsuited the plaintiff on the ground of the uncontradicted negligence of the deceased.
At the last trial, all the facts were proved, which were proved at the one that preceded it; and these were very succinctly stated in the following synopsis, contained in the opinion delivered by Judge HUNT when the case was last in this court:
"On the day in question, the deceased drove his empty sleigh with a pair of horses into the village of Bath, intending to cross the ferry to Albany. The boat was not ready; and he fastened his horses in front of the tavern and went in. In a short time, notice was given that the boat was ready; his associates crossed over the track in their sleighs, one of them remaining near the track to assist the deceased, the others reaching the boat. The deceased came out, unhitched his horses, sat upon the bottom of his sleigh, drove northerly a few feet, turned westwardly, drove one hundred and twelve feet toward the ferry, when he reached the railroad track, when his horses were struck by the engine and cars going southwardly, his horses killed, and himself so badly injured that he died within a few days thereafter. As he drove northwardly from the hotel, he could see up the railroad a distance of thirty rods. After turning westwardly toward the ferry, and going a short distance, the view of the road northerly was cut off by the station-house, a building extending about fourteen feet in a direction easterly and westerly. As the deceased approached the train, he was driving on a moderate trot; he was shouted at three times by a man standing on the steps of a store adjoining the track, that the cars were coming, to which he paid no apparent attention. Whether he heard or understood does not appear. One of the railroad hands east of the track made motions to him, intended by the maker as signals to *Page 64 stop; and one of his own comrades, Simmons, on the west side of the track, made signs intended by him to effect the same purpose. The deceased drove on at a moderate trot till he reached the track. The train, as one witness testified, was running at a speed of fifty miles an hour, which would carry the train over the thirty rods in about fourteen and one-sixteenth seconds. The deceased was a frequent passer at this place; and it had been the established custom there for some years, that a flagman with a white flag should signal the approach of cars not intended to stop, and with a red flag when the train was expected to stop."
On these same facts, which appeared on the trial that we are now reviewing, we were asked to decide, that the judge should have nonsuited the plaintiff, when, by the decision rendered by this court on its last consideration of the case, it was held that these facts were sufficient to carry it to the jury. No new proof has been given or withheld, no circumstances have occurred, which could justify us for a moment to overrule the former decision. Nothing could justify this but a very palpable misapprehension of the facts, or a very palpable mistake of the law. At neither trial, indeed, was there any positive proof that the deceased directed his vision up or down the road. But may he not have done so, nay, do not the circumstances make it probable that he did so before he reached the station, which then obstructed his view. We have seen, that, as he drove northward from the hotel, he could see up the railroad a distance of thirty rods, and then, seeing no approach of the train, nor any thing indicating its approach, he ventured to cross. We are to infer from the verdict at the last trial, that the jury decided that no whistle was sounded, and no bell rung as the train approached the crossing; now, if ever there was positive proof that the deceased neglected to look up or down the track, would it be negligence in him not to have done so in the absence of the customary and legally required signals? I am not aware that this court has decided, or that there is a current of authority anywhere deciding, that, when a railroad company neglects to give these signals, the want of *Page 65 ordinary care can be imputed to a person crossing the track, if he omits to look up and down just before he crosses. The absence of the accustomed signals is calculated to impart an assurance of safety, particularly to one who is in the habit of crossing the same spot frequently, and who, perhaps, has never before known of their omission; and can it be correctly alleged that he is guilty of negligence if he abates his usual vigilance under such circumstances? I think that it would not be unreasonable to recognize such negligence, on the part of a railroad company, as a proper element for the jury, in considering all the circumstances relating to the question of negligence on the part of the deceased. Any contributory negligence of a person attempting to cross, no doubt, excuses the company, whether it does or does not use the required signals, or is or is not guilty of any other negligence.
But, I repeat, is it reasonable to impute negligence to a person, who frequently, for years, is accustomed to hear signals, if he omits, on one occasion, when they are withheld, to look up or down the road, immediately before crossing? At all events, there is nothing in the proof to show that the deceased neglected to look when his horses, on turning them round from the place where they were hitched, faced the north, and where he had an unobstructed view of the crossing, and of the railroad track for thirty rods north of it. The fact, that the witnesses failed to observe, that he, afterward, did not look up or down the track, is not, of itself, certain proof of the want of ordinary care on his part.
In my opinion, this court, in its last review of this case, in no respect relaxed the salutary rules which it had in many previous cases adopted in relation to the negligence of persons who are on railroads. In neither of the opinions, delivered on that occasion, is the rule ignored or modified; that, when the injured person has not used ordinary care, there can be no recovery against the company. They only in effect intimate, that what is want of ordinary care, is a question, depending, for the most part, upon the facts and circumstances of each particular case. *Page 66
The last decision in this case (35 N.Y. 9) is not, I think, at variance, substantially, with the legal propositions and deductions of the previous decision. (24 How. Pr. 97.) The latter was based, evidently, on a mistaken statement of the facts, which, if true, would have justified the court in concluding, that the deceased was guilty of negligence. The real facts, and the facts which were proved at the last trial, I repeat, authorized the judge to send the issues and evidence to the jury, in conformity with the decision of this court in its last review of this case; and, if he had not done so, the nonsuit would, unquestionably, be set aside.
The judgment should be affirmed with costs.