Without attempting an extended discussion in a case which has been the subject of repeated and extended discussion already, I prefer to state briefly the propositions to which my assent is given, for, in my judgment, the case itself involves rather the application of settled principles of law to the evidence, than any serious contest about the principles themselves.
1. That the plaintiff was bound to prove that the defendants were guilty of negligence, and that an omission to ring the bell or blow the whistle on approaching a road crossing is negligence, is not disputed.
Whether, in this case, the defendants did or did not ring the bell was in dispute, and the testimony was conflicting. It was, therefore, proper to leave that question to the jury.
2. The charge of the judge seems to assume that it was the duty of the defendants to keep a flag-man at the crossing to give notice of the approach of the train, and that their omission to do so is per se negligence. There is, I think, no such rule of law, and the court would not be warranted in giving such an instruction to the jury. It cannot be said, affirmatively, that any such duty rests upon the company. No statute requires it. The company have the right to run their trains carefully and prudently on the track which they are by law authorized to construct and use, and, if they do this, then it is the duty of those who have an equal right to *Page 67 use the highway at the crossing, to avoid them, provided they give the warning prescribed by the statute.
In determining whether the company were duly and reasonably careful in the running of their train, it is not necessarily enough, under all circumstances, that they give the statute warning. The rules of the common law prescribing reasonable care in the exercise of their own right, that others, also, in the careful exercise of their own rights, may not be injured, still rests upon them, and such care, where the danger to others is greater, as in cities or towns, may require them to slacken their speed and move their ponderous engines with very great caution and circumspection, because they are so powerful for harm. But, doing this, it cannot be said that they are also bound to place a man at the crossing in addition to such care and caution.
True, if the company elect to do so, as they may for their own convenience, they will thereby render it proper to run with greater speed and less caution on the part of the managers of the train. But the law does not require it, however stringent in requiring care in the management of the train itself.
But there is no exception to the charge in this respect.
Besides, the company, by their own practice, may make a law for themselves. If they had an established and hitherto uniform practice on the subject, which was notorious, and known to be so, then to withdraw the flag-man, when their own conduct had justified the expectation of all who were in the habit of using the highway, that warning by the flag would be given, would be improper, and be a neglect of suitable precautions, unless increased vigilance and care in the management of the train, or the employment of other means, furnished equivalent assurance of safety.
3. That, if the intestate was guilty of negligence contributing to the result, the plaintiff was not entitled to recover, is not denied. This was so charged on the trial.
The question is, where do the proofs clearly establish such negligence, so that the court should have granted a nonsuit or given a peremptory instruction to find for the defendant? *Page 68 Whatever I might conclude to be the preponderance of the evidence, the case seems to me one in which, upon this question, honest, intelligent and impartial men may rationally differ. And, if the doubt be such that such men, acting under a sense of great responsibility, and with a single purpose to arrive at the truth, may reasonably come to opposite conclusions, then it is proper to submit the question to the jury, and a nonsuit should not be ordered by the court.
A traveler approaching a railroad track is bound to use his eyes and ears, so far as there is opportunity.
Negligence in the railroad company in the giving of signals or in omitting precautions of any kind, will not excuse his omission to be diligent in such use of his own means of avoiding danger. And where, by such use of his senses, the traveler might avoid danger, notwithstanding the neglect to give signals or warning, his omission is concurring negligence, and should be so peremptorily declared by the court; and, where proof of this is clear, the plaintiff thus negligent should be nonsuited.
But, where it is doubtful, as I think it is in this case, under all the circumstances testified to, whether the traveler did or did not look up and down the track as far as he could see it; whether, in the short distance he had to drive, he could, if he did look, see the approaching train; whether the train came into view (considering the speed at which it was running, according to the testimony of some of the witnesses) until the moment when he reached the station-house, where his view was necessarily obstructed; whether he was not misled by the failure of the company to show the flag, as they had been accustomed to do; whether the attempts made to stop him were not, under the circumstances, liable to misinterpretation, and might not be reasonably interpreted by a cautious person to be intended to hurry him forward, so as to reach the ferry-boat, then in waiting, instead of warnings to stop; and so, finally, the question whether he used ordinary care and prudence becomes so complicated, and involves so many details, that honest men, acting without bias or partiality, in a single and sincere desire to *Page 69 determine according to the truth, may reasonably differ in their conclusions, — then the question should be left to the jury.
For these reasons, I concur in the result at which others of my brethern have arrived, viz., that the judgment should be affirmed.