The only question necessary to examine in the present case arises upon the exception taken by defendants' counsel to the denial of his motion for a nonsuit. This motion was made upon the following, among other grounds: That the intestate was guilty of negligence, contributing to the injury received by him. It is unnecessary to consider any of the other grounds; the testimony relating to this was in no essential particular conflicting. It was proved, that, in the day-time, the deceased was walking upon or by the side of the track of the defendants' road, in the village of Watertown, toward Court street; that, after he had got within the bounds of the street, as settled by the verdict, and within about twenty feet of the traveled portion thereof, he was *Page 367 struck by an engine, running upon the defendants' road at the rate of twelve or fifteen miles per hour, in the same direction the deceased was walking, and received thereby an injury causing his death; that this engine could have been seen by the deceased where he was walking, and where he was struck, for a distance of fifty or sixty rods, had he looked behind him along the track; that there was nothing to obstruct the view for that distance. The only question in the case, therefore, necessary to consider is, whether it was negligence in the deceased to expose himself in that dangerous position, without even looking along the track behind as well as before him, to see if there was a train approaching. That he did not look, is established by the fact that if he had, he must have seen the train in ample time to have enabled him to step off from the track, and thus have avoided the danger, which he failed to do. There was no explanation of this conduct of the deceased; no evidence of any other engine in motion in the vicinity, or any cause whatever, assigned for diverting the attention of the deceased from his own safety. Under such circumstances, to walk along or stand upon a railroad track without availing himself of the sense of sight as well as hearing, to ascertain whether there was danger in such position, is not only negligence, but borders upon rashness. It is no answer to say that this engine was not moving at that point upon the time of any regular train. If the deceased was sufficiently acquainted with the business of the defendants as to know the time of the different trains, he must also have known that working and other trains and engines passed over the road, or portions of it, at other times; that it was necessary for them so to do, in order to avoid the regular trains. It would be the grossest carelessness for one to place himself upon the track without at all attending to his safety, relying upon the fact that it was not the time for a regular train to pass over that portion. That this negligence of the defendant contributed to his injury, is manifest from the fact that, had he not been guilty of it, he would have known of the approach of the engine, and have avoided the collision by stepping off *Page 368 the track. If the deceased had ordinary hearing, it is almost inconceivable that he failed to hear the train, whether or not the bell was rung, in season to have avoided the danger, unless his attention was thoroughly engrossed by something foreign to his own safety in the position in which he had placed himself. He certainly could not have been relying upon any assurance of the defendant that no train was approaching, from their failure to ring the bell, for the reason that, had he listened enough to make sure that no bell was ringing within eighty rods behind him, he must have heard the noise of the engine in season to have avoided the danger, by leaving the track. All the authorities agree that no recovery can be had where the negligence of the party injured has contributed to the injury. The cases have been so often reviewed, that a repetition would be superfluous. The judge erred in not granting a nonsuit, on the ground of the negligence of the deceased.
The judgment appealed from must be reversed, and new trial ordered, costs to abide the event.
Judgment reversed. *Page 369