(dissenting.) This action was brought to recover damages for personal injuries received by the plaintiff while a passenger on one of the defendant’s trains. The injury resulted from the collision of two trains on the defendant’s road at Seventy-Sixth street and Third avenue on the 12th of March, 1888, which collision it was claimed was caused by the negligence of the defendant. The defendant, by its answer, admitted that the plaintiff was *94injured, and also admitted the collision, and set up the affirmative defense that the accident was unavoidable, and was attributable to what is known in the law as the “act of God,” and could not be prevented by the exercise of that degree of care which the law required of the defendant and under the circumstances existing at the-time the accident happened. Without considering the evidence in detail, it is sufficient to say that the collision occurred during the great storm of March 12, 1888; and it was claimed upon the part of the defendant that its appliances were in perfect order, but that in consequence of the condition of the tracks caused by the severity of-the storm, the train could not be stopped by the brakes, and the collision thus resulted without any fault or negligence upon its part. Evidence was offered upon the issues presented by the pleadings upon both sides, and the case submitted to the jury, who rendered a verdict in favor of the plaintiff; and from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is taken.
In the disposition of this appeal it has not been deemed necessary to state in detail the evidence which has been introduced upon both sides during the progress of the trial, nor the various facts which it is claimed were established by such evidence, as the result would seem to depend upon a single exception to the charge of the learned court. The court charged at the request of the defendant that the mere fact that an accident happened did not entitle the plaintiff to recover damages, and that a railway company is not an insurer of the lives or safety of the passengers on its trains, and that it was not the duty of the company to make accidents impossible, and that, in order to render the company liable for an injury, the plaintiff must prove that the injury resulted from the failure of the' company to perform some duty which it should have performed under the circumstances under which it was placed; that a railroad company is not liable for the unexpected results produced by the elements, which results it could not bé expected to foresee; and that ■the defendant was not liable for injuries arising from the violence of the elements which could not be guarded against by one using due care; and that it was the duty of the defendant to run its trains when the accident happened, unless when it attempted to run them accidents could have been foreseen by a person of due prudence.
The counsel also requested the court to charge as follows:
“A railroad company is not bound to anticipate or provide against storms oí extraordinary and unusual violence, and such as have not, within practical experience, been known in the locality in which the road is operated.” '
To this request the court said:
“I so charge, adding, however,- that the road and 'its servants and agents must exercise the care necessary under these circumstances to prevent accidents from occurring.”
The counsel for the defendant duly excepted to this qualification of the charge, -and to the refusal of the court to charge as requested. •■ This seems to have been clearly error, because the qualification *95made by the court made the railroad company insurers of the lives and safety of the passengers on its trains. It charged that the company must exercise the care which is necessary under these circumstances to prevent accidents from occurring, which entirely nullified the words of the request, and imposed not only the duty of using due diligence in preventing accidents, but of using such care as would' absolutely prevént accidents from happening, no matter from what cause, even if such accidents arose from the existence of extraordinary and unusual circumstances, which no person of due prudence could have anticipated. The only question is whether the court, by charging the subsequent requests of the defendant without in any way adverting to the charge already made, remedied the evil. The court subsequently charged, at the request of the defendant, that if the jury finds that the tracks, brakes, and all the other appliances used by the defendants were the best known for the purpose, and that the trains were operated with due care, and that in spite of such appliances and care the collision occurred, owing to the slippery condition of the track or otherwise, the defendant is not liable; also that the defendant was not required to take such precautions to prevent the accident as it was apparent after the accident would have prevented it, but only such due Care as would be demanded of one operating the trains, who did not know that the accident would happen. It is clear that the court had in mind the true measure of liability, and that the jury were instructed with all the liberality towards the defendant that it had a right to ask. ' But unfortunately this proposition, excepted to by the defendant, that it was bound to nse such care as would, under extraordinary and unforeseen circumstances, absolutely prevent accidents, gave to the jury an erroneous rule; and it is impossible for the court to determine as to whether, in arriving at the conclusion which they reached, they held the defendant liable because of the erroneous rule laid down for their guidance, or because of the correct rule which both preceded and followed that which was erroneous. Much as we regret to direct a new trial in this case after a second trial has been had, we see no other alternative in view of the error which was unfortunately committed by the learned justice presiding at the trial. The confusion undoubtedly arose from the multiplicity of requests which were presented to him at the time of the charge, and which" repeated in different forms and a varied verbiage substantially the same proposition. The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.