No motion for a nonsuit was made, either at the close of the plaintiff's testimony, or when the evidence on both sides was completed. No request was made to direct a verdict for the defendant. No suggestion was made at the trial, in any form, that there was not evidence on the part of the plaintiff, which, if credited by the jury, entitled him to a recovery. We are relieved, therefore, from a consideration of the case generally, and need only look at such parts of it as are connected with the exceptions made.
The court submitted to the jury the three questions following, viz.:
1st. Did the injury result from the collision of the train, by the negligent act of the defendant? *Page 473
2d. Did the injury result from the fright of the plaintiff's horse, by the negligent act of the defendant?
3d. Did it result from both of these causes combined? The jury answered each of these questions in the affirmative.
The appellant argues that there is no proof that the horse was frightened, and, therefore, nothing to sustain that part of the verdict. The verdict, it says, cannot be sustained, unless both of the facts upon which it was found are sustained by the evidence. It insists, also, that there is no evidence of a collision, but that the contrary is clearly proved. If there was no fright which caused the running away, and the overturn, and no collision, it is difficult to account for the overturn and destruction of the carriage and harness, and the injury to the plaintiff. A voluntary act of the plaintiff, and an intentional injury to his person, are the only remaining alternative.
It was assumed on the trial, and properly, that if the plaintiff's evidence was credited, a case was established. The plaintiff swore that in approaching the crossing, at a slow gait, he stopped three several times, looked for the cars and listened for the whistle or bell, the last time being within a short distance of the track, and that he saw and heard no train approaching. He thereupon proceeded slowly upon the track. As his horse placed his foot upon the rail, and when too late to return, he discovered the cars upon them. He shouted to the horse, which sprang forward and cleared himself and the body of the carriage. The cars, however, struck the hind wheel, upsetting the carriage and throwing it to a great distance. The plaintiff's son, who was with him, testified to the same state of facts, and that he himself looked back and listened, and could see nothing and hear nothing of the cars. He also testified that the cars struck the wheel of the carriage, and that the disaster arose from that cause. On each of the questions thus raised the jury found for the plaintiff. When they found that the injury arose from a collision, the finding of an additional cause was superfluous, but not injurious. A fright of the horse is not inconsistent with a collision, and the injury might well have resulted from a combination *Page 474 of these causes. That this evidence, if credited, justified a verdict, was conceded on the trial, and has in substance been held many times in this court. I see no occasion for disturbing the verdict from anything occurring in this view of the case. (O'Mara v. Hud. R.R.R. Co., 38 N.Y., 445.) When the jury have found, in answer to a specific inquiry, that there was a collision, which finding is based upon the evidence of the witnesses, it is quite useless to insist that there was no collision and to argue legal propositions based upon that allegation.
The court is said to have erred, secondly, in admitting evidence of the habits and condition of the flagman, prior to the time of the accident. It is settled by repeated adjudications of the Court of Appeals, that the fact that the company for a series of years had kept a flagman at a crossing, to warn travelers of an approaching train, that the person injured has been aware of such practice, and that on a particular occasion no flagman appeared, was competent evidence on the question of the plaintiff's freedom from negligence. The plaintiff in this case, was a frequent traveler of this road. When a train was at hand he was, no doubt, warned by words or by signals from the flagman to wait till it had passed. When there was no train at hand no flagman appeared. On the evening in question, as he passed to the west, no flagman gave him warning; no warning was needed, for no train was at hand, and he passed on in safety. On his return no flagman appeared, and he had a right to regard this as evidence that no train was at hand. (Ernst v. Hudson R.R.R. Co.,39 N Y, 68.)
The plaintiff had a right to prove the absence of the flagman, or his incapacity to perform his duty and its consequent neglect. He proved that, although there at the station, he was drunk and did not appear till after the occurrence of the accident. The case still rested with the plaintiff, and he was at liberty to guard his proof, or even to anticipate its refutation. On the point of whether he did then and there discharge his duty by giving the required warning, his actual condition, his mode of life, and his habits of intemperance, afforded *Page 475 very strong evidence. (Pa. R.R. v. Butler, 57 Pa. R., 335.) The appellant's counsel says: It is undisputed that he was not present, and, therefore, his condition on former occasions, or his general condition, was not competent to charge the defendant. If it had been conceded at the trial that he did not actually come out of the house until after the accident, this evidence would have been unimportant. The defendant, however, did not then concede this. Two of its witnesses, on the contrary, the engineer and fireman, testify that the flagman came out of the house when the whistle was blown, and before the plaintiff crossed the track. So, if it had been conceded that the flagman was drunk, the evidence would not have been proper. At this stage of the case no such admission was made. As evidence bearing upon the point of his presence, or of the company's knowledge of his unfitness, proof that he was habitually drunk while on duty, and that his habits were bad, was competent. His habitual intemperance, or even his reputation in that respect, was evidence that the company was aware of his unfitness for the important position in which he was placed. (Gilman v. EasternR.R. Co., 13 Allen, 433, 444; The same v. The same, 10 Allen, 233.)
The third objection is, that the court erred in charging that the presumption will be, in all cases, that the plaintiff is free from fault. The charge was this: "The presumption will be, in all cases, that the plaintiff is free from fault, if nothing else appears in the case, because it cannot be supposed that a man would hardly (intentionally?) bring an injury upon himself. That, however, is a matter of evidence; and in all cases of this class there is a sort of double trial, unless there is at once a clear case of the defendant's wrong doing and freedom from fault on the part of the plaintiff." Subsequently the judge added: "It will be necessary that Mr. Warner shall have satisfied you that, so far as he was concerned, he was not guilty of negligence." At the request of the defendant's counsel, the judge afterward charged in these words: "The defendant's counsel requested the court to charge that negligence is an affirmative fact, to be proved by the plaintiff before *Page 476 he can recover, and of necessity he must prove that it was negligence on the defendant's part, free from negligence on the part of the plaintiff." This was an instruction that the plaintiff must prove himself free from negligence, and ended all questions of presumption.
Error is also alleged in that part of the charge where the judge said: "The defendants have a right to construct a railroad to run through the country and to cross all highways; they have nothing more than a right to cross the highways. They do not own them; they belong to the public. Every man has a common right with all others to pass along the highway, and the railway has no more right in crossing the highway than a person has in passing along the highway. * * The railroad has no superior right to the strip of ground across the highway, and must exercise care and diligence, as much as a citizen in crossing the same highway." Not assenting to this doctrine, the defendant's counsel asked the court to charge "that the rights of the citizen are subservient to those of the company," which was refused. I do not understand the point to be here presented, that a traveler has a right to stand on or pass over a railroad crossing when a train is appoaching and in his view. The learned judge had frequently, in this and other cases, held to the contrary. It was a question of the ownership of the highway simply, and had no proper bearing on the question in dispute. The court had already charged, with great distinctness, that the plaintiff could not recover, unless he proved that the defendant was guilty of negligence, and that he was free from negligence on his own part. Assuming this, the question whether the rights of the parties to the highway are equal, or the one subservient to the other, is idle and unpractical. It is a useless discussion. If the jury should hold that the railroad had the superior right, the result must be the same as if they held that the rights of the parties were equal. It is a question of negligence or no negligence, not of dominant or servient rights. The charge in this respect is of no possible importance on the question before us. *Page 477
The defendant's counsel also asked the court to charge, that the railroad has a right to cross the highway at such speed as it may deem proper, so far as the public is concerned, and that no negligence is to be inferred from the rate of speed at which the trains are run. The court charged, "that they may run at such speed as they think proper, subject to liability to respond for damages they may cause. Ordinarily they are governed as to speed only by considerations of prudence. They are bound to exercise such care and prudence as will guard against injury to persons on the highway." While I agree with the opinion of the learned judge who delivered the charge (Ernst v. H.R.R. Co., supra), I fail to see its importance in the present case. The cars were running at a speed not less than thirty miles per hour, and not more than forty, and through the open country. These are the limits as given by the witnesses. It was not pretended that there was unreasonable speed, and no point could be made to that effect by the plaintiff upon the evidence. If the defendant gave the signals required by the statute, there was no claim that the rate of speed would render it guilty of negligence. The speed was only important upon the question of the plaintiff's freedom from negligence; that is, whether he could have made the examinations he said he did, when the cars were in fact so close upon him. As a principal proposition, the rate of speed or the right to speed did not exist in the case.
The last point made by the defendant, is that the court refused to charge, "that unless the injury was caused by collision, the plaintiff cannot recover." This objection has been considered under another point, as has also the effect of the previous existence of a flagman at this point. There is nothing in them requiring further consideration.
The judgment should be affirmed, with costs.
For affirmance, HUNT, C.; for reversal, LOTT, Ch. C., LEONARD, GRAY and EARL, CC.
Judgment reversed and new trial ordered costs to abide the event. *Page 478