The defendants moved for a nonsuit when the testimony was closed, on three grounds: 1. That the plaintiffs’ evidence, uncontradicted, did not show negligence; 2. That the defendants' evidence disproved all negligence; and 3. That the plaintiffs’ intestate was clearly guilty of negligence. The negligence for which the plaintiff claimed to recover was the omission of the defendants’ agent to sound the whistles of the locomotive, or ring the bell, as required by the statute. By § 39 of the general rail road act (Sess. L. of 1850, p. 232) it was made the duty of the defendants “ to have a bell placed upon each of its locomotives, and to have the same rung at the distance of at least 80 rods from the place where their rail road crosses any public road or street, to be kept ringing until it shall have crossed such road or street, or else to have attached to each locomotive engine a steam whistle, the same to be sounded at least 80 rods from the place where the rail road shall cross any such street or road, and be sounded at intervals until it shall have crossed such road or street.” The plaintiffs called five or six witnesses to prove the neglect of the defendants’ agents to ring the bell or sound the whistle, each of whom testifies that he heard no signal, either by the bell or whistle, indicating the approach of the train to the road crossing in question. This testimony was all negative, and quite inconclusive. It by no means followed because five or six persons, having no special reason to notice the ringing of that bell or sounding of the whistle, did not hear either sound, that therefore neither the bell was rung nor the whistle sounded. But it was doubtlsss sufficient prima facie evidence to go to the jury. The defense, to repel this evidence proved, by the positive affirmative testimony of two witnesses, the engineer on the locomotive and the fireman, that both the bell was rung and the whistle sounded, at the time, for more than the requisite distance; and their testimony is corroborated by three others who heard the whistle or the bell. If this was not a suit against a rail road company in behalf of a widow woman whose husband had been killed by the casualty which was the *540subject of investigation, I should suppose that the positive affirmative testimony of the defendants, on the question of sounding the whistle and ringing the bell, was much more to be relied on and would rather be credited by a jury, than the mere negative uncertain testimony of the plaintiffs’ witnesses. But we should not set aside a verdict merely because we should have come to a different conclusion from the jury on the force and weight of the testimony. (Sullivan v. Dollen, 13 Illinois Rep. 85. 12 Conn. Rep. 212. 2 Gilman, 618.)
It was proved by one witness who was standing two rods south of the track and on the west side of the road or highway, at the crossing, at the time of the accident, that the plaintiffs’ intestate came out of the field into the road where the witness was standing, and was going towards the crossing when the witness spoke to him, and told him the cars were coming; “he, (the deceased,) was then going slowly, standing on his sleigh and his horses on a walk. As I spoke to him” (the witness said) “ he turned his head towards me, and then struck his horses with the lines and went on to the track.” The witness, on cross-examination, further said that he was about six feet from the deceased when he spoke to him; was not able to say whether he, (deceased,) heard him or not. “He turned and looked towards me when I spoke to him, and then with quick motion struck his horses with the lines.” This witness is not contradicted, or in any way impeached. His testimony is clear and explicit, and is fully entitled to credit, for aught that appears in the case. I think upon this positive testimony, unexplained, uncontradicted or in any way weakened,- the justice at the trial would have been warranted in nonsuiting the plaintiffs; and how the jury could say that the plaintiffs’ intestate was not guilty of negligence, or that his negligence in no way contributed to his death, I cannot comprehend. If the rule that a plaintiff suing for negligence must himself be free from fault is a sound one; if a plaintiff whose negligence has contributed to the injury is not entitled to recover against a party no more guilty of negligence than himself, and this *541rule of law is to be maintained, I cannot see how such a finding of a jury can be sustained. It is directly against the evidence, and we cannot uphold it or refuse to set it aside, unless we adopt the rule which is, I fear, quite prevalent in the jury box, that the same measure of justice is not to be meted out to a rail road corporation that is meted out to natural persons. The case of Potter v. The New York Central Rail Road Co., decided at the last December term, was referred to by the counsel for the plaintiffs. That case was decided upon the argument, and I think, upon an entire misconception of the facts. I concurred in the decision, but upon looking into the case, since, I am satisfied that it was erroneously decided, and that a new trial should have been granted. The rule of liability in such cases is correctly stated in Sheffield v. The Rochester and Syracuse Rail Road Co., (21 Barb. 339;) and according to that case the plaintiff should have been nonsuited in this case, and in that of Potter.
There are several exceptions to the charge, but they all relate to the wood pile of the defendants so placed as to obstruct the view of the plaintiffs’ intestate when coming on to their track from the south side of the road. The judge told the jury that the situation of the wood could only be regarded in considering the obligation of the defendants to provide with greater care against accidents. Wood was piled all along, for many rods from the crossing, on the sides of the rail road track westward, so as to obstruct the view of a person at the crossing. In what respect this imposed any extra duty upon the defendants in running their cars I cannot conceive. The case contains no suggestions of any particular neglect of any duty in respect to the wood pile. The plaintiff was not a stranger there. He was at work drawing and piling wood at that station, and had been so engaged the whole of the last season. (The accident was on the 21st of December, 1854.) It was in proof that 24 trains of cars passed there daily, which must have been well known to the deceased, as well as their relative times, and the customary practice in passing that sfca*542tion. It seems to me that it was the height of imprudence and heedlessness for a man, with such knowledge, to approach and attempt to cross a rail road track about the time a train was due, till he had fully ascertained that it was entirely safe to do so; and that the fact of the location of this wood pile, perfectly well known to him, does not diminish his duty to be careful, in the slightest degree. The rather, in my opinion, did it increase his duty to greater carefulness. I cannot agree with the implication of the charge, that because there was a wood pile in the way of his seeing far along the track—a wood pile placed there by the defendants probably through the personal agency in part of the plaintiffs’ intestate himself— he was therefore excused or relieved from exercising due care and diligence. I hold that he was bound to exercise care and diligence and foresight in proportion to the danger to he avoided, and the fatal consequences involved in his neglect. His vigilance should be quickened, not slackened, by the fact that he could not see the track sidewise, to any distance, till he got right on to it. He was bound to act as a prudent rational man in view of the surrounding circumstances; and no prudent man would drive heedlessly upon a rail road, and attempt to cross its track, till he had actually and fully ascertained that the track was clear, and that there was no danger. The allusion which the circuit judge made to the wood pile, in his charge, I think clearly erroneous. He made it an excuse for the plaintiff’s intestate in driving heedlessly upon the track. It must have been so construed by the jury. I think all the exceptions to the charge, so far as they relate to the situation of the wood pile, and its influence on the relative rights and duties of the defendants and the plaintiffs’ intestate, well taken, and that there should be a new trial; costs to abide the event.
[Cayuga General Term, June 7, 1858.Johnson, Welles and Smith, Justices.]
Welles, J., concurred.
Johnson, J., dissented.
Hew trial ordered.