This action was brought to recover damages for injuries to the plaintiff, claimed to have been caused by the negligence of the defendant. On the trial, at the Albany Circuit, before Mr. Justice WRIGHT, the plaintiff was nonsuited. Judgment having been entered for defendant, the same was affirmed at the General Term; and the plaintiff now appeals to this court.
It appeared upon the trial that the plaintiff was a passenger on the defendant's train of cars which left Syracuse for *Page 10 the west on the night of the 19th of July, 1855, at 12.28. The train was moving over that part of the road where the accident happened at about the rate of thirty miles an hour. This section of the road was straight, well-constructed, and in good order, when the train was thrown from the track and the plaintiff was injured. The night was very dark, and it was raining at the time. The train was thrown from the track through the culpable act of some unknown person, who, maliciously or mischievously, drew the spikes which fastened the chairs and the rails. The spikes, on examination, were found to be drawn from the north side of two rails, the chairs shoved back and the spikes drawn from the chairs, and the rails moved north. Marks were visible on the ties of a claw bar having been used in removing these spikes. Two trains had passed over this section of the road, at the point where the injury happened, which was about four miles west of Syracuse, a short time before. This accident happened at 12.36. One train, going east, had passed over this part of the road at 10.40; another train, going east, passed this point at 11.15; another train, going west, left Syracuse that night at twenty minutes to 12, and passed that point at about 12 o'clock. The road was in good condition, when these trains passed over it, in safety, and without any obstruction. A short time before this accident, some obstruction had been placed in the road, within half a mile of the point where the plaintiff was injured. Search was fruitlessly made for the person who had placed it there. It also appeared that Wibert, the assistant trackmaster, a few days before the accident, had a difficulty with some workmen, who had been laying track on the road. They threatened to have satisfaction; and this occurred at a point about six miles west of that where the accident happened. It was known to these men that Wibert was in the habit of passing and repassing in the cars over his whole division, and usually rode on the engine. That night he remained in Syracuse, but went in there from the west in a hand-car, about 7 o'clock in the evening. The track was then all right. The inference is very strong that these men *Page 11 supposed he would come out that night, and probably upon this train.
The only question upon this appeal is, whether there was any evidence of negligence on the part of the defendants or their servants, sufficient to warrant the learned justice who tried the action in submitting that question to the jury. It is a familiar principle, that carriers of passengers are not insurers of the safety of their passengers. Their duty is measured by the dangers which attend railroad carriage; and the utmost foresight as to possible dangers, and the utmost prudence in guarding against them, are required to exempt them from liability in case of injury to a passenger. (Bowen v. N.Y. Central R.R. Co.,18 N Y, 408.) Story on Bailments says: "Passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons." This doctrine received the approval of this court in the case of Bowen (supra); and it was added, that after the onus had been cast upon the carriers, they are bound to show that there has been no negligence whatever, and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent. The familiar form of expressing the rule of duty of the carrier is, "as far as human care and foresight will go." Negligence is the violation of the obligation which enjoins care and caution in what we do. (Tonawanda R.R. Co. v. Munger, 5 Denio, 255; S.C., affirmed, 4 Comst., 349; Carroll v. N.Y. N.H.R.R. Co., 1 Duer, 571.)
Another rule of law, equally well-settled, and of familiar application, is, that an action, founded on alleged negligence, cannot be sustained, if the wrongful act of the plaintiff cooperated with the misconduct of the defendants or their servants to produce the damage sustained. If the act be one of mere negligence on the part of the plaintiff, he cannot recover. (5 Denio, 264.) The same doctrine is repeated in this court in the same case (4 Comst., 360), and numerous cases cited to sustain it. If the plaintiff, by any act of his, *Page 12 contributed to produce the injury, he cannot recover. It has very frequently received the approval of this court in numerous cases. (Steves v. Oswego Syracuse R.R. Co., 18 N.Y., 422; Wilds v. Hudson R.R., 24 id., 430; S.C., 29 id., 315.)
There was no evidence in this action of any negligence on the part of the defendants, their servants or agents. This portion of the track of the defendants was laid with the best and most improved rail. It was in perfect order. It had been passed over by their trackmaster a few hours before the accident. Within two hours before it occurred, three trains of cars had passed over it in safety, and it must then have been in complete order. The proximate cause of the accident was the removal of the spikes which fastened the chairs and rails to the ties and sleepers. It is apparent, that as soon as these fastenings were removed, a superincumbent pressure would displace the rails, and thus inevitably throw the cars off the track. No human care or foresight could guard against such a diabolical act, committed under the circumstances developed in this case. It is clear that these fastenings must have been removed after the last train going east had passed the point where the road was disturbed. This is manifest from the fact that that train passed safely over the road, and that it was the intention of the actors to have satisfaction of Wibert, the trackmaster; and it is apparent that this was their motive in removing the spikes. They doubtless knew of his going into Syracuse that evening, and naturally supposed he would return by the express train coming out from Syracuse, going west, that night. Their malice was, therefore, particularly directed against that train, as the one supposed to contain the object of their malice and hatred. It was of no particular moment, the rate of speed at which the train was passing at the time of striking that portion of the track which had been rendered incapable of sustaining the locomotive and cars. At any rate of speed, testified to on the trial, the result must have been the same — the displacement of the rails, and the overthrow of the engine and cars. The plaintiff, to maintain his action, had to make out negligence on the part of the defendants, their servants or agents. *Page 13 This, it has been seen, there was an entire failure to do. The culpability of the defendant must be affirmatively proved, before the case can go to the jury. (Per DENIO, J., Johnson v. HudsonRiver R.R. Co., 20 N.Y., 71.)
If, therefore, the jury, on this testimony, had found that the defendants had been guilty of negligence, it would have been the duty of the court to have set aside the verdict. It would have been, not only against the weight of evidence, but wholly unsupported by evidence. In such cases the duty of the court is clear and well-defined. (3 Graham Waterman on New Trials, 1204, and cases there cited; Brooks v. Buffalo Niagara Falls R.R.Co., 25 Barb., 600 — affirmed, Court of Appeals, December, 1855;Steves v. Oswego R.R. Co., supra; Wilds v. Hudson River R.R.Co., supra; Haring v. N.Y. Erie R.R. Co., 13 Barb., 9.) All these cases affirm also the doctrine, that, if the evidence is not sufficient to warrant a verdict, or if the court would set aside a verdict, if found, it is the duty of the court to nonsuit a plaintiff. This is distinctly declared in Steves v. OswegoR.R. Co. (supra, p. 425, and cases there cited). It is also very emphatically repeated by this court in the case of Wilds v. Hudson River R.R. Co. (supra), when that case was first in this court, as reported in 24 N.Y. This court then declared it to have been the duty of the judge, upon the facts proven in that case, to have nonsuited the plaintiff. The reasons for that judgment are very clearly stated. The judgment in that case was reversed, and a new trial ordered. Upon the new trial, the same state of facts substantially having been proven as appeared upon the former trial, the learned justice at the circuit nonsuited the plaintiff, in accordance with the former judgment of this court. This court affirmed the judgment of nonsuit (29 N.Y. 315), all the judges concurring, except the judge who tried the case at the circuit. The chief judge of this court said, that the uncontradicted evidence was such as not to present anything for the jury to deliberate upon, and, therefore, the nonsuit had been properly granted. In these cases the plaintiff was nonsuited on the ground that he could not maintain his action, *Page 14 because it appeared that he had not been free from fault on his part. It is as essential that this should be established, as it is that the negligence of the defendants should be made to appear. The latter is the gist of the plaintiff's action; and the former is equally important. In the language of Judge GRIDLEY, inSpencer v. Utica and Schenectady Railroad Company (5 Barb., 337), "this is a stern and unbending rule, which has been settled by a long series of adjudged cases." (Beers v. Housatonic R.R.Co., 19 Conn., 566; Park v. O'Brien, 23 id., 339; Neal v.Gillett, id., 437; Daley v. Norwich Worcester R.R., 26 id., 591.) And this rule is considered as the settled law of Connecticut. (Fox v. Town of Glastenbury, 29 Conn., 204.) InGuhugan v. Boston and Lowell Railroad Company (1 Allen, 187), the Supreme Court of Massachusetts held, that if the whole evidence upon which the plaintiff's case rests shows that he did not use due care, but was careless, the court may rightfully instruct the jury, as matter of law, that the action cannot be maintained. In Toomey v. London and Brighton Railway Company (91 Com. Law, 146), it was held that the judge was justified in nonsuiting the plaintiff, on the ground that there was no evidence of negligence on the part of the company. WILLIAMS, J., said, there was no evidence of negligence on the part of the company or their servants which ought to have been submitted to the jury. It is not enough to say that there was some evidence. A scintilla of evidence, or a mere surmise, that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence. Cotton v. Wood (98 Com. Law, 566), was an action under Lord CAMPBELL'S act, brought by the plaintiff, as administrator of his deceased wife, for an injury which resulted in her death. On the part of the defendant it was submitted that there was no evidence to go to the jury of actionable negligence on the part of the defendant's servants. Of this opinion was the learned judge; but to save the necessity of going down again if the court should think *Page 15 otherwise, he left it to the jury. On a motion for a nonsuit, ERLE, Ch. J., said, he was of the opinion that the rule must be made absolute to enter a nonsuit; that the plaintiff was not entitled to succeed unless there be affirmative proof of negligence on the part of the defendant or his servants. WILLIAMS, J., stated his concurrence, and added, that there is another rule of evidence which is of the first importance, and is fully established in all the courts, namely, that where the evidence is equally consistent with either view — with the existence or non-existence of negligence — it is not competent to the judge to leave the matter to the jury. The party who affirms negligence, has altogether failed to establish it. That is a rule which ought never to be lost sight of. The other judges concurring, the rule for a nonsuit was made absolute.
The doctrine of these cases fully supports the ruling at the circuit, and the judgment entered thereon. The judgment appealed from should, therefore, be affirmed.