It is insisted on behalf of the defendant that the judge erred upon the trial:
1. In refusing to charge that upon the facts proved there was negligence on the part of the plaintiff which contributed to the injury. >
2. In declining to charge that the undisputed fact that at the time of the injury the plaintiff was standing in the open road on the exposed side of his wagon, within reach of the whiffletree of the defendant’s wagon as it was passing on a walk and without a driver, establishes negligence on his part.
3. In declining to charge that the burden of proof was upon the plaintiff to satisfy the jury that he was free from any negligence contributing to the injury.
First. The soundness of the position taken by the defendant’s counsel, that upon the undisputed facts there was negligence on the 'part of the plaintiff, depends, I think, upon the question whether the plaintiff carelessly took a position immediately prior to the injury which he might have avoided • by the exercise of ordinary care and prudence. It is true, doubtless, that he might have gone in front of his horse ; behind his wagon; got into it; or gone to the right side of the wagon; if he had not reason to suppose and believe that he was entirely safe, in the position he actually did take. Was the plaintiff responsible for this error of judgment (if it can *207fairly be claimed that it was such,) so as to be liable to the charge of negligence on his part P There is a conflict in the evidence as to whether the plaintiff saw the defendant, and perhaps as to the fact whether the plaintiff turned off as falto the right as he could have done. If he did see the defendant and believed that he had charge of and was driving his team, then he had certainly a right to act upon the presumption that ordinary care would be exercised to prevent a collision, and was not required to make use of that extraordinary degree of care which would appear to be essential had the defendant’s team been alone and unattended. The same remark is applicable, if the plaintiff turned out to the right to the utmost extent which he was capable of doing, in order to enable the defendant to pass his team without accident. As the evidence was somewhat conflicting upon one or both of these points, it is not entirely clear that the plaintiff was chargeable with an error of judgment and was guilty of negligence. Certainly if the actual situation of the parties was made doubtful and uncertain by the testimony, it was proper to submit that question to the jury, as was substantially done by the judge in his charge.
The court of appeals, in a late case, (Wilds v. The Hudson River Rail Road Company, 24 N. Y. Rep. 430,) decided that in cases of negligence it is the duty of the judge to non-suit where a verdict for the plaintiff would be clearly against the weight of the evidence. The case holds that one driving on a highway crossing a rail road is guilty of negligence if he does so without looking out for a train which he would have seen, or listening for signals of its appearance, which he would have heard in time to avoid a collision. That a person should pause, and if he fails to do so it is of no consequence in the eye of the law whether he merely misjudges or is obstinately reckless. The act is not careful. See also upon the same point, Steves v. The. Oswego R. R. Co., (18 N. Y. Rep. 422 ;) Griffin v. Mayor of New York, (5 Seld. 456;) Munger v. Tonawanda R. R. Co., (4 Comst. 349;) Mangam v. *208Brooklyn B. B. Co., (36 Barb. 230;) Bieseigal v. N. Y. C. R. R. Co., (33 id. 429 ;) Dascomb v. Buffalo and, State Line R. R. Co., (27 id. 222;) Brooks v. Buffalo and Niag. Falls R. R. Co., (25 id. 600.)
The case in 24 N. Y. Rep. 430, above cited, is clearly distinguishable from the one at bar. There is a wide and palpable difference between running into the very midst of danger and perhaps into the jaws of certain death, with obstinate recklessness or great heedlessness, at least with a chance of. being seriously injured, and taking the steps which a prudent and discreet man would deem necessary to free himself from harm. It cannot be said in the present case that a verdict for the plaintiff would be clearly against the weight of the evidence. Kor can it be fairly insisted that the undisputed facts establish that the plaintiff under all the circumstances selected an unsuitable and an improper place, so as to be chargeable with negligence. As the evidence stands I am not prepared to say that negligence is sufficiently established on the part of the plaintiff so as to authorize the judge to charge the jury to that effect.
Second. The second proposition to charge the jury differed from the first in omitting to ask the judge to withdraw from the jury the question whether the fact that at the time of the injury the plaintiff was standing in the open road in an exposed position established negligence on the part of the plaintiff. In effect it was a request to the judge to instruct the jury that the plaintiff was guilty of negligence. The judge had already submitted to the jury as a question of fact for their determination, whether there was negligence on the part of the plaintiff which contributed to the injury; and the immediate and direct consequence of the instruction required would have been to dispose of the case adversely to the plaintiff. I have already examined the question whether the facts proved constituted a case of negligence on the part of the plaintiff, so as to justify the court in charging the jury to that effect; and what has been said is equally applicable to the *209point now considered. It is by no means clear that these facts constituted negligence on the part of the plaintiff) and with the views already expressed I discover no error in the refusal of the judge to charge as requested, upon this branch of the case.
Third. The next point taken by the defendant’s counsel is one of considerable doubt and difficulty. The extent to which the court of appeals has gone in recent decisions, in cases involving questions of mutual negligence, furnishes strong reasons for upholding the doctrine contended for. It therefore becomes important to examine the cases in which adjudications have been made bearing upon the question now presented.
The principal case relied on, in this state, to sustain the principle insisted upon, is that of Button v. the Hudson River R. R. Co., (18 N. Y. Rep. 248.) In that case the defendant’s counsel requested the court to charge the jury that the plaintiff, in order to recover, must establish affirmatively that tho deceased was not guilty of negligence. The judge refused so to charge, and the defendant excepted. Strong, J. in his opinion, holds that this was erroneous, and the marginal note of the case lays down the general doctrine that “ In an action for negligence the burden is upon the plaintiff to prove affirmatively that he is guiltless of any negligence proximately contributing to the result.” Harris, J. also wrote an opinion in the case, placing his conclusion upon different grounds than those taken by Justice Strong. All the judges concurred in the result of these opinions, and for the most part upon the grounds stated in both of them.
In a subsequent case, (Johnson v. The Hudson River Rail Road Company, 20 N. Y. Rep. 65,) a similar question was discussed, although the point was not distinctly made as to the burden of proof. The doctrine is laid down by Denio, J. that the rule is not universal that the plaintiff must prove affirmatively that his own conduct on the occasion of the injury was cautious and prudent, and that the *210onus probandi depends upon the position' of the affair as it stands upon the undisputed facts. The learned judge also arrives at the conclusion that the absence of fault may be inferred from the general evidence in. the case; and says in reference to the case of Button v. The Hudson River R. R. Co., (18 N. Y. Rep. 248,) before cited, that in the decision of it "we were not sufficiently agreed to make it a lucid precedent.” He also says, “ It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident. The character of the defendant’s delinquency may be such as to prove prima facie the whole issue; or the case may be such as to make it necessary for the plaintiff to show by independent evidence that he did not bring the misfortune upon himself.”
It would appear from the doctrine here laid down that in cases involving mutual negligence, the question whether independent evidence is required of the plaintiff, to establish that he was not guilty of negligence, must depend greatly upon the circumstances of each particular case. While in some cases the plaintiff must prove affirmatively that he did not contribute to the injury, in others the transaction itself as presented by the evidence establishes that he did not.
In a still later case, in the Court of Appeals, (Ernst v. Hudson River R. R. Co., 24 How. 97,) Smith, J. says: "A party suing for negligence must come into court faultless. He must not present a mere balanced case. The burden of proof is upon him, and he must satisfy the court, by the greater weight of |he testimony, that without any carelessness or blame on his part, he has suffered an injury from the wrongful act, default or negligence of the defendant.” The general rule is doubtless correct that the affirmative of the issue, or the burden of proof, is upon the plaintiff in this class of cases. Bor is this rule inconsistent with the proposition that the facts and circumstances established in the case, or fairly inferable, may supply the necessary evidence without other affirmative *211and positive evidence establishing directly absence of negligence on the part of the plaintiff.
In the case at bar the evidence upon the question of negligence was somewhat conflicting. It appeared that the plaintiff might have got out of the reach of the fatal collision which produced such serious consequences. As I have already shown, it was proper to submit to the jury the question whether the plaintiff was guilty of negligence. It was not a case where the conduct of the plaintiff, or the position of the affair was such as to establish by undisputed facts that the plaintiff was free from blame. Eor was it clear that the delinquency of the defendant was of that character which made out the whole issue prima facie. Can it in fact be said in any case where it is doubtful whether the plaintiff had used proper precaution to free himself from threatened danger— where at least there is a conflict in the testimony as to the blame attaching to the plaintiff—that he is relieved from the burden of proof ?
While the question is not entirely free from difficulty, yet applying the principle established in 20 N. Y. Rep. to the facts and circumstances of the case at bar as presented by the evidence, I am of the opinion that the burden of proof was upon the plaintiff to satisfy the jury that he was free from any negligence contributing to the injury.
It will be noticed that the proposition made by the defendant’s counsel did not require that the plaintiff should establish by independent evidence that he was not guilty of negligence. It had no relation whatsoever to the mode of proof, or its character. It simply asked the judge to lay down the rule that the affirmative of the issue as to the burden of proof, upon the question of negligence on the part of the plaintiff, was upon the plaintiff, and that he must satisfy the jury on this point before he could recover.
It is said that the request was substantially covered by the charge and the subsequent instructions. 1 do not think that • either of them embraced the proposition. They related mainly *212to the effect of the plaintiff’s negligence in producing or contributing to the injury. Nor did the directions that in determining the question as to the plaintiff’s negligence the jury should look at all the facts and circumstances, dispose of the point.
[Albany General Term, December 1, 1862.The request related to the rule to be adopted in weighing the evidence in arriving at a conclusion in regard to the plaintiff’s negligence. The jury had received no instructions upon this point; and in a case nicely balanced as this was, where they might be hesitating upon the question as to the weight of the evidence as to the plaintiff’s negligence, they may very easily have been misled by the charge made. They may possibly have inferred that the burden of proof was upon the defendant to make out negligence on the part of the plaintiff. They may perhaps have drawn such an inference from the very fact that the judge refused to charge that the burden of proof was upon the plaintiff. The judge had not distinctly charged the proposition requested, in the previous part of his charge. If he had done so he should have refused the request upon that ground, lest the jury should have been misled by an unqualified refusal. If the judge had charged in conformity with the request made, it will scarcly be denied by any one that he would have charged the law correctly. I think the judge should have charged as requested; that he erred in refusing to do so; and for this error a new trial should be granted, with costs to abide the event.
Hogeboom, J. concurred.
Peckham, J. expressed no opinion.
New trial granted.
Hogeboom, Peckham and Miller, Justices.]