It is conceded in the ease, that the court correctly stated to the jury the rules of law applicable to questions of negligence. The only question in the case then is, whether the court should have non-suited the plaintiff, or dismissed her complaint at the close of the evidence.
The counsel for the appellant does not ask that the judg*266ment should be reversed on the ground that the question as to negligence on the part of the defendant, or its employees, should not have been submitted to the jury; but on the ground that the decedent was himself plainly negligent, and by his negligence caused, or contributed to cause, his own death.
• There is no doubt as to the principle of law, that if the decedent by his own negligence contributed to cause his own death, that the plaintiff cannot recover, however negligent the defendant or its employees may also have been. The question then is, whether it was the province of the court or of the jury in this case, to pass upon the question of negligence on the part of the decedent. In my opinion, it was the province of the jury, and for the grounds of this opinion I refer to my opinion in the case of Amanda Rhodes, Administratrix, &c. agt. The Buffalo and State Line Railroad Company, decided at the last term of this court. This case never has been reported, but it seems that a portion of my dissenting opinion in the case was taken and reported as my dis senting opinion in Wilds agt. The Hudson River Railroad Co. (24 N. Y. R. 444, &c.), in which case I also dissented.
It may be that the supreme court thought that a verdict for the defendant, would have been more or equally satisfactory, but I do not see upon what principle that court could have granted a new trial. It could not have done so on the ground that the verdict of the jury was against the weight of the evidence as to the carelessness or negligence of the decedent. There was no material conflict in the evidence as to the facts or circumstances relating to the conduct of the decedent, or bearing on the question of carelessness on his part. There may have been a conflict between these facts or circumstances, as arguments on the question of the negligence of the decedent; that is, that some of these circumstances may have tended to show great carelessness on the .part of the decedent, and others of them less carelessness, or usual care and prudence.
It appears to me, if the general term had granted a new trial in this case, it must have been solely on the ground that the *267jury had drawn the wrong conclusion from the circumstances of the case relating to the conduct of the decedent; that they had misjudged as to the weight or force of these circumstances, as arguments on the question of the negligence of the decedent.
Now I think it was the peculiar province of the jury to judge of the weight or force of these circumstances relating to the conduct of the decedent. I do not see why the jury were not just as likely to judge rightly as to the conduct of the decedent on the occasion of the accident which caused his death, as the learned judge who presided at the trial; no law having declared what conduct should be deemed careless or prudent on such an occasion.
I think it was the province of the jury first to determine from the evidence how the decedent did conduct; and next, to say whether his conduct was careless or not. No law has defined or declared what shall be deemed careless or negligent conduct in approaching or crossing a railroad; or the facts or circumstances to show negligence in approaching or crossing a railroad; and the misfortune is, as it is not to be supposed that all the facts and circumstances of any two cases will be precisely the same, if this court should reverse this judgment and grant a new trial, its decision can never have the force of authority.
I might refer to the decision of this court in the case of Betsey Bernhard, Administratrix, &c. agt. The Rensselaer and Saratoga Railroad Company, made a few terms since, to show that the judgment in this case should not be reversed; and the decision of the court in the case of Amanda Rhodes, Administratrix, &c. agt. The Buffalo and State Line Railroad Company, made at the last term, might with equal propriety be cited to show that the judgment in this case ought to be reversed ; but the latter decision did not reverse, and cannot be deemed to have reversed the former decision ; for the circumstances of the two cases were entirely different.
1 But if this court, without regard to the principles and precedents of the common law, which committed questions of conduct to the jury, should in this case assume the prov*268ince of a jury, and undertake to judge from the evidence, whether the conduct of the decedent was careless or not, I do not see how a new trial could be granted.
It is to be presumed that the death of the decedent was caused either by his own negligence or the negligence of the employees of the defendant. It is not to be presumed that he intended to commit suicide, or to wilfully throw away his own life. It is not to be presumed that those in charge of the train intentionally and wilfullyrun over him. The question is did the decedent by his own negligence, cause or contribute to the cause of his own death ?
The circumstances, that as he approached the crossing he was hallooed to, and motioned to stop, are relied on to show that he rushed on to his own destruction—but it is easy to see, that all this hallooing, and these motions, might have misled the most prudent man under the circumstances.
What are the circumstances ? The decedent and his companion Simmons, stopped at the tavern in Bath, probably to warm themselves and take a drink, before crossing the river; they were told that the ferry boat was about smarting; they hurried out of the tavern without drinking ; Simmons hurried down to the ferry on foot to detain the boat; the decedent unhitched his horses, jumped into his sleigh and hurried on. What was he thinking of ? No doubt of reaching the ferry boat before it left. He sees the motions—he hears the hallooing as well as he could with the shawl about his neck and ears ; he sees Simmons motioning; he sees a man on the ferry boat motioning him to come on. Is it not probable that his mind was so absorbed with the one idea, or fear, that the boat would leave before he could reach it, that he supposed all this hallooing and motioning to mean, “ hurry on or the boat will leave you ?” And if he thought so—if any man of ordinary prudence might have thought so under the circumstances—if this was the theory of the conduct of the decedent, which the jury, who saw the witnesses and heard them testify, adopted; why should this court, with nothing before them but a statement of the evideaa-% undertake to say that the jury misjudged ?
*269There was conflicting evidence as to the rate of speed at which the train was running, and also as to whether the engine bell was rung or whistle blown, before the accident.
In lopking at the question whether the motion for a non-suit should have been granted, on the ground of the negligence of the decedent, we have a right to assume that the speed of the train was the greatest speed testified to; and that neither the bell was rung nor the whistle blown, before the collision. Who can say if the bell had been rung or the whistle blown, as required by law, that the decedent would have been misled by the hallooing and motions ? or that the accident would have happened if the speed of the train had been such as is prudent at railroad crossings in a village ?
In my opinion, the judgment should be aflirmed, with costs.