Cate's uniform habit of slackening the speed of his horse to a walk at the Waukewan crossing, and looking and listening for the approach of a train before attempting to pass the crossing, tended to show that he did so on his fatal trip. It was substantial evidence of the exercise of care on that occasion. Davis v. Railroad, 68 N.H. 247, 248, and authorities cited.
But it is said that this evidence proves too much to be of benefit to the plaintiff; that if Cate did exercise care to that extent, he must have discovered the approach of the train, and consequently must have been guilty of negligence in attempting to pass over the crossing ahead of it; that this evidence in connection with the other evidence bearing on the question is so uniform and weighty that impartial and reasonable men could not arrive at different conclusions upon it, but must agree that Cate's death was caused by his own negligence. This makes it necessary to examine the evidence sufficiently to ascertain whether it possessed uniformity and weight to the degree alleged.
The elevated land between the highway and the railroad track, with the house and fence upon it, obstructed the view of the track from the highway more or less. The obstruction was greater at some points than others. The defendants' experiments showed that, with the conditions as they were on the evening when the experiments were made, the light from the locomotive and cars could be seen above the fence, or through cracks in it, the most, if not all, of the distance between the house and the crossing. This night was cloudy, but there was a moon; while on the night of the accident it was cloudy, misty, and dark. The persons observing the experiments knew that the train was on the track, and it *Page 83 is fair to presume were specially alert in their efforts to see the light. They were there to make observations with a view of testifying in the case, and their attention was fixed upon the matter. Whether a man of average prudence, about to pass over a grade crossing, would take the same pains in attempting to discover the lights of an approaching train, and whether the lights would be discovered without such pains, were pure questions of fact. These differences in the conditions between the night of the experiment and the night of the accident affect the weight of the testimony. It was also necessary to determine whether the lights of the train were in the same places and of the same intensity as those of the colliding train. When Cate got opposite the end of the fence, he could see down the railroad for some distance — the distance increasing as he approached the track. The engineer of the train, who was looking ahead, did not see Cate's team until he was within three or four rods of it, and then saw only the horse's head and forward parts. They came from behind the fence, "right out of the darkness." The curve in the road caused the headlight to send its rays to the westerly side of the track, until it came near the crossing. It would not be contrary to reason to conclude from this evidence, accompanied with a view, that Cate by his sense of sight did not discover, and by the exercise of ordinary care would not have discovered, the approach of the train in season to avoid the collision. If he saw the train at the moment when the engineer first saw his horse, it would not follow, as a matter of law, that he was in fault for not stopping, although his horse was gentle and not afraid of cars. Folsom v. Railroad, 68 N.H. 454.
But Cate was not called upon to rely upon the sense of sight alone. It was the duty of the defendants to give two long and two short whistles when their locomotive was eighty rods distant from the crossing. P.S., c. 159, s. 6. Cate was justified in relying upon a performance of this duty. State v. Railroad, 58 N.H. 408, 410; Nutter v. Railroad, 60 N.H. 483. Whether he was at liberty to rely upon it altogether is a question of fact, and not of law. Mitchell v. Railroad, 68 N.H. 96, 116.
It must be regarded as a. fact that the whistle was not sounded on this occasion. There was competent evidence before the tending to establish this fact. The weight of the evidence depended largely upon the situations of the witnesses relative to the crossing at the time the whistle should have been sounded, their intelligence, their habits of observation, their candor, and their appearance generally — matters of which the jury had advantages for judging which the court do not have. Even if the defendants' evidence appeared to the court to be of much greater weight than the plaintiff's *Page 84 it ought not to and could not affect the finding here, — nor at the trial term unless the preponderance of weight is so great as to show that the jury "were influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake." Fuller v. Bailey, 58 N.H. 71; Doughty v. Little, 61 N.H. 365, 369; Drown v. Hamilton, 68 N.H. 23, 27. The jury found that Cate's want of knowledge of the approach of the train was due to the defendants' fault. The fault referred to seems to have been the failure to give the whistle for the crossing. The finding in effect was that Cate relied upon the whistle to notify him of the approach of the train. It would not be unreasonable for a man familiar with the two crossings mentioned in the case, as Cate must have been, to conclude that the train would not pass the second crossing, after whistling at the first, until it had whistled again.
It has been argued that the cases of employees against employers in which judgments have been directed for the defendants are authorities supporting the defendants' motion in this case. Allen v. Railroad, 69 N.H. 271, with other cases, was cited upon this point, and may be taken as a representative case so far as this argument is concerned. Allen, an experienced brakeman, mounted a moving box car so near to an overhead bridge, the existence and character of which he knew, that it was his duty to ascertain whether he was outside the bridge guard, if he intended to rely upon it to notify him of his approach to the bridge. If he had looked, he would have learned there was no guard. Upon these facts, about which there was no conflict in the evidence, it was held that he assumed the risk attending the passage under the unguarded bridge. Under the peculiar circumstances of the case, the railroad's failure to perform its duty increased Allen's responsibility for his own safety. It certainly was not a notice to him that he might safely attempt to pass the bridge as if it were properly guarded and he were outside the telltale. In this case, if Cate listened before attempting to cross the track, as the evidence tends to show that he did, he heard no whistle, because none was sounded. The defendants' failure of duty in this respect, instead of throwing the responsibility for Cate's safety in passing over the crossing upon him, was notice to him from the defendants that the crossing was not to be occupied by them. It was an instance in which acts, or rather the omission of acts, spoke louder than words. As has been already said, Cate might be justified in acting upon this notice. It might properly be found that men of average prudence would do so. In short, it conclusively appeared that Allen knew or ought to have known of the nature and imminence of the danger to which he was exposed, while it is doubtful, to say the least, whether Cate knew of the dangers that were before him, or was in fault for not knowing of them. *Page 85
The defendants' motion to direct a verdict in their favor was properly denied. This conclusion is strongly supported by Evans v. Railroad,66 N.H. 194, a case closely resembling this in many of the facts.
The jury were instructed that it was Cate's duty, before attempting to cross the track, "to take such precautions to learn of the approach of trains as men of ordinary prudence would take in like circumstances." The defendants admit that, "as an abstract proposition, this was unexceptionable." But they say the only precaution that can be taken in such cases is to look or listen for a train, or both; and, consequently, that the duty is to look or listen and should be so stated as matter of law. It is doubtful, to say the least, whether this is the only precaution available for the purpose. Familiarity with the manner in which the railroad is operated and the times when trains pass over it might excuse a traveler, under some circumstances, from looking or listening for a train when about to pass over the crossing. Other circumstances might show an exercise of ordinary care when there was a failure to look or listen. The law does not adopt particular circumstances as standards for measuring the degree of care required to amount to ordinary care. The circumstances in negligence cases are too numerous and variable to allow of this course. The rule must be so general that it may be applied to the circumstances of any case. Accordingly, the standard adopted is the care exercised by persons of average prudence under the same circumstances. It may be — often is — difficult to determine what this care would be in a given case. So far as known, a person may never have been called upon to act under the same circumstances. The question oftentimes must be determined by an exercise of sound common sense, in the light of one's general knowledge acquired by observation and experience. A jury, composed, as it is, of twelve impartial men drawn from different walks in life, is as capable of correctly determining such a question, as a court composed of a less number of men whose training, occupation, and experience have not been so favorable for fitting them to form a sound judgment on the question. It certainly must be as apparent to jurymen as to members of the court that a person of average prudence will, under most circumstances, look or listen for a train when about to pass over a grade crossing. There is no more likelihood that a jury will be swayed by prejudice or passion in cases of this kind than in any other cases. If the defendants' views were adopted, it would take this class of cases out from the operation of the general rule governing negligence cases. It would also conflict with the general spirit of the law of the state. There is no sufficient reason for making such an exception. The instruction given correctly stated the rule *Page 86 of law applicable to the circumstances of the case, and the defendant's exception to it must be overruled.
The defendants' exception to the instruction as to the relevancy of the testimony concerning Cate's habit of checking the speed of his horse, and looking and listening for trains when about to go over the Waukewan crossing, must also be overruled. State v. railroad 52 N.H. 528, 549, 550. The jury were told that they were to consider this habit "only as having some tendency to show that he checked his horse, looked, and listened on the night of the accident, as usual." Such a consideration of it excludes its consideration as proof that Cate was a cautious and careful man. The defendants' request was given in substance, and they have ground for complaint.
Exceptions overruled.
PARSONS, J., did not sit: the others concurred.