In this case the judge nonsuited the plaintiff. The nonsuit was moved for on the ground that the negligence of the deceased contributed to produce the injury *162complained of. It does not appear whether it was granted upon that ground, or upon the ground that the defendants were not guilty of negligence, or hath. As the judge refused to submit the case to the jury, it must appear that the evidence in favor of the defendants was so clear'—on one or the other of these grounds—that a verdict for the plaintiff would have been set aside as unwarranted by the evidence.
If the evidence established the fact that the bell of the engine was rung, at the distance required by law, before reaching the crossing, I should incline to sustain the nonsuit. The deceased could scarcely have failed to discover the approach of the train, had he looked up the track, as he had sufficient time and opportunity to do. There was nothing to obstruct his vision until he got very near the track. There was nothing done by the defendants to mislead or confuse him, unless it was the omission to ring the bell. He sat in the bottom of his sleigh. He was bundled up with a shawl, or something else, about his face, which very probably affected his hearing. He was not observed to look up or down the track, although he might have done so. He was probably intent upon reaching the ferry-boat, which was about to start. The crossing was a much frequented one, with which he was familiar. He drove towards the ferry boat apparently unobservant of, or inattentive to, the approach of the train, which was both seen and heard by several other, persons. These facts go very far towards establishing, prima facie, a want of care on his part, which should defeat the action.
And yet there are one or two circumstances in his favor, entitled to consideration on the question of negligence. One I have already casually mentioned, to wit: the defendants’ omission to ring the bell, except at the moment of collision. I think we. must assume, upon the present evidence, that such was the fact. Persons who were in a situation to hear, and would probably have heard the bell, if rung, testify to the fact that they did not hear it. This is, it is true, only negative evidence, and of little weight in comparison with positive *163evidence to the contrary; hut there is no such positive evidence ; and I regard it as strong enough to overcome the legal presumption against a violation of duty. This being so, it established a neglect of duty—negligence, on the part of the defendants. And it may help to excuse the decedent from the imputation of negligence; for where a bell is required to be rung, the object of it is to notify and warn travelers of approaching danger. The traveler has, I think, a right to rely to some extent at least, upon its being rung. The omission to ring it does not, of course, absolve him from the necessity of other proper precautions. But if the jury should be satisfied, upon reasonable evidence, that the sound of the bell would have attracted the notice of the decedent, and enabled and caused him to avoid the danger, I am not prepared to say that there was such freedom from negligence, on the part of the defendants, and such want of care on the part of the decedent, as defeats the action. And under the evidence, I think this was a fair question for the jury, and that their verdict either way would not be disturbed.
There is another circumstance which appears to me not without some force in exculpating the decedent, if the jury took a particular view of the case. It is the signals or motions made to Ernst, when he was driving towards the ferry boat. They were intended, doubtless, as warnings not to attempt to cross the rail road; but it is possible he may have understood them as invitations to hasten to the ferry boat, which was about to start across the river. And though it is scarcely probable that he put that construction upon them, I cannot say that a verdict establishing that fact would be without evidence to support it. If he did so understand the signals made to him, then they were calculated to induce him to do just what he did do, and might naturally disarm a prudent person of the suspicion of danger approaching from another quarter.
These considerations have induced me to favor a new trial. I give my entire assent to the proposition that nonsuits in this class of cases, involving the question of negligence, are as *164proper as in any other, and I am quite aware that the sympathies of a jury are naturally inclined to those who suffer from these terrible accidents to such an extent as makes them sometimes forget the rules of law applicable to such questions. At the same time, the law has constituted them the chosen triers of disputed questions, of fact, and such questions arise not only where there is a conflict of evidence as to what actually occurred, but where there is a real and well-founded doubt as to the legitimate inferences to be drawn in respect to the existence of certain facts, from certain other facts clearly established by positive evidence. We must assume that in these, as in other cases,-jurors will not be guilty of a violation of duty, when they receive proper instructions from the court.
On the whole, though with some hesitation, I think the nonsuit should be set aside, and a new trial granted, with costs to abide the event.
Peckham, J. concurred.