[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 442 The rules of law, applicable to this case, must be considered as settled, viz.: First, that the parties seeking to recover for injuries occasioned by the negligence of another, must be shown to be free from negligence contributing in any degree to occasion the injury complained of.
Second, that a person attempting to cross the track of a railroad must make use of his ordinary faculties to ascertain if there is danger in the attempt, or he will be held guilty of negligence. Ernst v. The Hudson R.R.R. Co., 36 How. 84; (Wilcox v. The Rome Watertown R.R. Co., decided at the September Term of this court.)
Third, that the question of negligence, the facts being uncontroverted, is a question of law for the court.
Applying these principles to the uncontroverted facts of this case, and I am constrained to conclude, that the judgment cannot be sustained. The deceased was attempting to cross the west track of the defendant's road at the moment when an express train passed over that track. He had been *Page 443 frequently a passenger by the train from which he alighted at the same moment, and lived in sight of the crossing. He must have known that the express train was due at that point within one minute of the time, and, allowing for very slight delay on the part of the accommodation train, that the express train was liable to pass at that very moment. With this knowledge, it was especially his duty to look out for the train before going upon its track. He either did look out for it, or he did not. If he did not, he was guilty of negligence in the omission; if he did, he must have seen the approaching train within a few feet of him, and his attempt to cross in front of it was recklessness. InErnst v. The Hudson River Railroad Company (supra), WOODRUFF, J., says, "A traveler approaching a railroad track is bound to use his eyes and his ears, so far as there is opportunity, and where, by such use of his senses, he 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 when proof of this is clear, the plaintiff, thus negligent, should be nonsuited." It was undisputed, in this case, that the track was straight and the view unobstructed, for from five hundred to six hundred feet north from the point at which the deceased stepped from the cars, and the conclusion is inevitable, either, that the deceased omitted to look up the track, or that he saw the approaching train. It cannot be said that he was required to alight at the point where he did, and between the two tracks; so far from this, it seems to me proof of additional negligence on his part that he did so. It is very doubtful whether the train by which he was a passenger had stopped at all when he got off, and if it had, it is certain that its stop was only momentary, and not for the purpose of discharging its passengers. It had not reached its stopping place, and when the deceased fell it was moving on toward the platform where it usually discharges its passengers. It is true, that the station-house was on the west side of the track, but there was a platform for the up trains on the east side, and the deceased was not going to the station-house, but to his own house, by a shorter *Page 444 route. It seems to me very clear how this casualty occurred: The car in which the deceased was riding had reached the crossing of the street upon which he lived; to get off there saved him a few steps of distance and a few moments of time, and forgetful of the danger from the express train, of which a moment's reflection would have reminded him, he stepped from the car at the street crossing and on the side nearest his home, without so much as looking up the track to see if the express train was coming. That train passed at the moment of his coming to the ground; he started back to avoid it and slipped or stumbled under the wheels of the train in motion behind him. Had he kept his seat until the train in which he was seated had stopped to discharge its passengers, or, in default of that had he looked up the track before stepping down from the platform of the car, either precaution would have saved his life. He omitted both and was guilty of negligence, which gave occasion for the injury complained of. In my opinion, the motion for a nonsuit should have been granted; but if not, it is very clear, under the decisions of this court, above cited, that the defendant was entitled to the instruction to the jury asked for, viz., that it was the duty of the deceased to look in the direction from which the express train was due before attempting to cross the track, and that if he omitted to do so he was guilty of negligence which precluded a recovery, and that the court erred in refusing so to charge.
Upon both of these grounds, I think the judgment should be reversed and a new trial granted.
Judgment reversed. *Page 445