The principal question presented on this appeal arises on the refusal of the judge on the trial to instruct the jury "that if they found the evidence given by the plaintiff's witness, Ellen McEver, as to the manner in which the deceased stepped on to the track to be true, then he was guilty of negligence, and the plaintiff could not recover." He, when doing this, according to that evidence, "had his right hand up to his hat and held it down to shield his face, to ward off the storm, that the wind was blowing hard and it was then raining." The truth of this statement must be assumed, and it establishes the fact, that the deceased was not only not looking to see whether the cars which ran over him were on the track, but also that the manner in which he held his hat prevented him from seeing them. This, under the circumstances of the case was negligence on his part. He had, from his employment, for about four years in the Union iron works and his passage daily, from the time of his employment over the tracks of the defendant to and from his residence, become fully apprised of the fact, that cars were running over this *Page 542 part of the branch track, not at stated intervals but as convenience or the requirements of business demanded, and might, therefore, be expected to pass at any time. He was, therefore, bound to act on that assumption, and ordinary and common prudence, and care required him to look and ascertain whether he could pass with safety. Such a precaution is demanded of every person in crossing a common country road. No person is at liberty to place himself in a position where he knows he may be more or less exposed to danger, without taking any means to ascertain whether such danger exists. The deceased, according to this evidence, for all practical purposes, closed his eyes and voluntarily took a position where he knew he might encounter an approaching car. That act certainly contributed to his death, and his representative cannot claim compensation for its consequences.
This view of the case necessarily leads to a reversal of the judgment. It may, however, be proper also, to consider whether the court properly instructed the jury "that it was the duty of the defendant to set the brakes or otherwise fasten the cars when they were left by it in the yard of the Buffalo Union iron works."
It is true that the evidence tended to show that there was danger of the cars, left unfastened, being moved by winds in that locality, and that it was a proper precautionary measure to block the cars or fasten them in some other way to prevent such movement. I, however, do not find any facts in this case to justify the conclusion that the defendant by the omission of that precaution failed in the performance of any duty to the deceased. There was not any subsisting relation between the parties that imposed it.
Assuming that the deceased, in consequence of the previous acquiescence of the defendant in his passing over the track, could not be considered a trespasser, he had no right to impose or exact any condition or restraint as to the manner in which it should use its property. He was in the prosecution of his own business, and no connection whatever with the defendant. *Page 543
A man by closing a gate in the fence separating his yard or inclosure from a highway, may effectually prevent his horse from running over a person rightfully passing on the sidewalk in front of his premises, and it may be deemed prudent to do so; but his omission to do it cannot charge him with a negligence or breach of duty.
The defendant stood in no different relation to the deceased, and the court erred in instructing the jury in reference to its duty and its liabilities.
This view of the defendant's obligations renders it unnecessary to examine whether the failure of the defendant to fasten its empty cars (assuming that the duty existed) would have rendered it liable, there being evidence tending to show that they would have had to overcome an up grade, that there was a car loaded with coal on the track properly fastened between them and the place of collision, and that ordinary winds would not have caused such collision.
There must, on the grounds above stated, be a reversal of the judgment and a new trial ordered, costs to abide the event.
EARL., Ch. J., SMITH, GROVER, LOTT and INGALLS, JJ., for reversal on the ground of misdirection in the charge, and that the defendant owed no duty to the deceased to set the brakes.
SUTHERLAND, J., for reversal on the ground of the misdirection, and that it was a question for the jury to say whether the omission to set the brakes was negligence.
That the negligence of the deceased in stepping upon the track prevented a recovery. LOTT and GROVER, JJ.
HUNT and FOSTER, JJ., were for affirmance.
Judgment reversed. *Page 544