On the 29th day of December, 1855, Henry Ernst, while driving his horses before a lumber sleigh, came into collision with the defendants' cars, when crossing a highway in the village of Bath, in the county of Rensselaer. The plaintiff is the executrix of the said Ernst. The case has been tried three times. Upon the first trial the plaintiff was nonsuited. This nonsuit was set aside by the General Term of the third district, and a new trial granted. (32 Barb., 159.) The second trial resulted in a verdict of $2,500 for the plaintiff. The judgment was affirmed by the General Term, but, upon an appeal to this court, the judgment was reversed and a new trial ordered. (19 How. Pr., 97.) On the third trial, at the close of all the evidence, the court directed the plaintiff to be nonsuited. The defendants asked for this nonsuit on *Page 42 the ground that the evidence did not establish negligence on the part of the defendants, and on the further ground that the evidence showed that the deceased was guilty of negligence on his own part, contributing to the injury complained of. The motion was resisted by the plaintiff's counsel, who requested the court to submit to the jury the several questions of fact involved in the motion and arising upon the evidence. The learned judge who tried the case declined to submit any question of fact to the jury, and nonsuited the plaintiff. The General Term of the third district affirmed the judgment upon this nonsuit, and the plaintiff now brings it to this court for review.
In making this decision at the circuit, the judge necessarily decided that, upon the testimony given, and in its most favorable aspect, and conceding to the plaintiff the benefit of all doubtful or disputed questions, a verdict for the plaintiff could not have been sustained, but would have been set aside upon presentation to the Supreme Court. If such shall be found to be the result of the evidence, the judgment must be affirmed; but if a finding of the jury in favor of the plaintiff could have been sustained, then the judgment must be reversed.
The only questions of fact which it will be necessary to examine are those of negligence: first, of the defendants; and next, of the deceased. The proof is in many respects different from that upon the former trial, as recited in the opinion given in this court by Justice E.D. SMITH, and that opinion is not, therefore, controlling on the present questions. On the question of the defendants' negligence, I entertain no doubt that there was evidence on which the jury would have been justified in finding this point against the defendants. The speed of the train, whether it was on or off time, whether the bell was rung and the whistle blown, as required by the statute, the absence of a flagman, where one had been accustomed to be stationed, the failure of the engineer to look ahead to the left, the presence of Waltemyre on the engine, whether authorized or unauthorized, were questions which would have afforded the jury room for a fair exercise *Page 43 of their judgment, and their decision would not have been disturbed if it had been in favor of the plaintiff.
The principal question, however, arises upon the other point, of concurring negligence on the part of the deceased, contributing to produce the injury. The facts as proved, and as the jury would have the right to infer them to be, exercising their power of finding all doubtful points in favor of the plaintiff, may be stated as follows:
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 lumber 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 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, *Page 44 was running at a speed of forty miles per hour, which would carry the train over the thirty rods in about eight and a half seconds, and over fifty 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.
These are the substantial facts bearing upon the point now under consideration. The cases in this court, of Wilds v. TheHudson R.R. Co. (29 N.Y., 315); Brown v. N.Y. Central R.R. (32 id., 597); Newson v. The Same (29 id., 383); Steeves v.Oswego Syracuse Railroad Co. (18 id., 422); and in Pennsylvania, of North Pa. R.R. Co. v. Hilman (49 Pa., 60), contain the recent expositions of the law now to be examined. The case of Steeves decides that gross negligence in a person injured at a railroad crossing, by a passing train, will defeat his action for damages, notwithstanding the omission of those running the train to ring the bell or sound the whistle, as required by law. In that case, as the facts are stated in the opinion of the court, there was nothing whatever to excuse the injured party both from seeing and hearing the approaching train; while riding for about a mile parallel with the track and in plain view, he would seem to have closed his eyes and ears, and to have driven across or upon the track as a train was approaching. An injury received under such circumstances, the court held to be the result of his own reckless indifference, for which he could not recover against the railroad company whose train had caused it.
In the case of Newson v. N.Y. Central (supra), the finding of the jury in favor of the plaintiff was sustained, although it appeared that the deceased drove and remained with his horses in a dangerous place; that he had a previous difficulty with his horses at the same spot, in the earlier part of the same day, and that he was warned by the flagman that it was dangerous, and that he must not remain there with his horses. It appeared, further, that he was at the *Page 45 point designated by the defendants for the business in which he was engaged, that of receiving gravel from the cars, and the court held that it was a plain duty of the defendants not to expose him to danger while there, and that it did not lie with them to say that he was guilty of negligence in going there. It was not absolutely necessary, the court say, that the defendant's cars should have been run so near to his horses, and they held that such running was a clear act of negligence, for which the company was liable. I think this case holds that the question of the negligence of the deceased is not an isolated question, but is mixed with, and depends for its solution, in some manner, upon the question and degree of the defendant's negligence.
Brown v. The N.Y.C.R.R. (supra) was an action brought by the plaintiff to recover damages for injuries sustained by the plaintiff, by a collision of the defendant's cars with a stage-coach in which she was a passenger. The view of the track was so much obstructed by houses and trees that a train approaching the village of Albion could not be seen until the traveler was within a few rods of the track. The driver heard the train approaching and stopped his horses. As it was passing, he started up toward the track, when a single car, separate from anything else, also came by. He again stopped, waited till it passed, and again started up. His horses had now reached the rails, when he saw still other cars approaching from the same direction. He whipped his horses with the intention of crossing before they reached him, but his hind wheels were struck, the coach upset and the plaintiff's injuries received. The separate cars following each other so rapidly, was the result of what is called a running switch, for the purpose of leaving one car out of the train. The defendants claimed that, upon the undisputed facts, the plaintiff's driver was negligent and that she could not recover. The court held that upon these facts it was not error to leave it to the jury to say whether the driver was negligent; that it was for them to say whether he could more safely have drawn back than whipped up; that, under such circumstances, the party who put him in jeopardy is *Page 46 responsible, and not he, if he mistook the safest means of escape. On the question of negligence in not having seen the cars approaching, the court say that that was also for the jury. He had seen a train pass and had waited for it. He had also waited for a single car to pass. His eye followed them, and "was he bound to suspect that more were coming, and to be on the look-out for them? I think it is asking too much to say that it was negligence, as a matter of law, not to have anticipated that they were following. The signals of the train had told him where the danger was, but gave no warning of unsignaled danger to follow." This authority also connects the question of the plaintiff's negligence with the acts and omissions of the defendants and their agents.
In the case of Wilds, it appeared that the deceased drove his horses upon a railroad where it crossed the street, the bell rang and the whistle sounded; a flagman stood in the center of the street waving his flag; some persons hallooed to him, and others tried to seize and stop his horses. He saw the engine coming, but raised his whip and attempted to pass before it. He failed, and was killed. This court ruled, as a matter of law, that no action would lie by his administratrix against the railroad company, on the ground that the exercise of ordinary discretion and prudence by the deceased would have discovered the advance of the train, and would have effectually preserved him from danger.
The Pennsylvania case decides that it is the duty of a traveler approaching a railroad crossing to look along the line of the railroad and see if any train is coming, and that if he failed to take such precaution it was more than evidence of negligence — it was negligence itself, and that the jury should have been so charged.
Did the facts, as I have collated them, in the present case, exhibit necessarily an absence of that ordinary prudence and discretion, or was there such room for question as that the case should have been left to the determination of the jury? The question of negligence is usually one of fact for the jury. (2 Starkie on Ev., 973.) What constitutes negligence is a pure question of fact for the jury to decide. (Ang. on Car., *Page 47 §§ 7, 16, c.; Story on Bail., § 11; Greenl. on Ev., § 48.) And it does not follow, necessarily, where there is no conflict of evidence, that the court is to decide the issue. (Ireland v.Oswego R.R. Co., 13 N.Y., 533; Oldfield v. N.Y. and H.R.Co., 14 id., 310.) What constitutes negligence in a particular case is generally a question for the jury, and not for the court, because negligence is want of ordinary care. (49 Penn., supra.) These authorities are not in conflict with those which hold that, in certain cases, the courts rule the question as one of law, as where the evidence so clearly shows the want of prudence and discretion that there can be nothing for the jury to pass upon. Assuming that the conduct of the deceased, on the occasion in question, indicated negligence on his part, there are still some considerations to be noticed. The first is this: when the deceased started northerly from the tavern, and when he turned westwardly, toward the track, his eye would have covered the track for a distance of thirty rods. This was as far as he could see upon the railroad, and I think he was bound to survey this space. As I have already stated, this train, moving at forty miles per hour, would have passed over this thirty rods in eight and one-half seconds. Now, I think it was for the jury to say whether he had not found, by observation, that the track was clear, so that he could safely pass over it, and that the train came over this space and come upon him while he was passing over the space covered by the station house, and where his view of the road was obstructed. The jury would be quite competent to say whether, at the moderate rate at which he was going, this inference might fairly have been drawn, and the conclusion thus reached, that it was not his own want of attention that produced the catastrophe. I think it should have been left to them, upon that view.
Another consideration arises upon the point, whether it was entirely certain that the deceased understood, or was bound to have understood, the meaning of the shouts, the motions and gestures that were made to him. The ferry-boat was ready, his comrades had reached it, and were detaining *Page 48 it for him, and his crossing the river was the prominent idea in his mind. One man was on the west side of the track, which was nearest to the ferry, making gestures and motions, and others upon the east side were also shouting and making motions. It is possible that the deceased may have misinterpreted these attentions, and understood them as designed to hurry him on to reach the boat, and this, too, with the exercise of ordinary prudence and discretion.
A third consideration, and which affects those I have already mentioned, and is to be considered in connection with them, was the absence of a flagman, when the deceased attempted to cross the track. A man had usually been stationed there, to warn off travelers by his flag, when there was danger from an approaching train. The deceased was for many years accustomed to travel the road and to cross at this point. How far, then, the knowledge of the deceased extended as to this practice, whether he looked for the flag, and, not finding it exhibited as usual, relied upon its absence as evidence that the track was clear, and that he could safely cross, whether it was prudent and discreet in him to rely upon its absence, or whether he was still bound to exercise other precautions, and to take other means to satisfy himself that no train was at hand, whether his construction of the shouts, gestures and motions was to be affected by this absence of the flag and his knowledge of it, and its effect upon his examination of the road, were, I think, questions that should have been submitted to the jury. Without intending an intimation that the jury should or would have found in accordance with these suggestions, and intending to observe the principles laid down in Wilds and Steeves heretofore cited, I think an error was made in withdrawing the case entirely from the consideration of the jury. There should be a reversal of the judgment of the General Term, and a new trial ordered.
All the judges concurring,
Judgment reversed and new trial ordered. *Page 49