
    Fanny Wilcox, Administratrix, etc., of John Wilcox, deceased, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellants.
    Where deceased was killed in attempting to cross the railroad track within the limits of the public highway, and at a public crossing, if it appear, that deceased would have seen the approaching cars, in season to have avoided them, had he first looked before attempting to cross, it will be presumed, that he did not look; and, by omitting so plain and imperative a duty, he will be deemed to have been guilty of negligence, which pre eludes a recovery.
    A traveler in crossing a railroad track is required to exercise, at least, ordi nary sense, prudence and capacity—which requires, that he should use his ears and eyes, so far as he has an opportunity to do so; and a failure to do this will be deemed to be' negligence sufficient to preclude a recovery in his favor, in case of accident.
    The negligence of the company in not ringing the bell, or sounding the whistle, does not excuse the other party from the exercise of ordinary care and prudence in attempting to cross the track of the road.
    Appeal from judgment of General Term of fifth district.
    The action was brought to recover damages for the negligence of the defendants in causing the death of the plaintiff’s intestate, and was tried at the Jefferson County Circuit. The plaintiff’s intestate was passing, on foot, a crossing on defendants’ road on or near the place where it crosses Court street in the village of Watertown. Court street is one of the principal thoroughfares leading'into it from the country to the public square and business center of the .town. The defendants’ road crosses the street at right angles near the bridge across the Black river. There are fwo depots in the village, one in the neighborhood of half a mile above the crossing, in the rear of the Woodruff house, and the other about the same distance below. They are known as the upper and lower depots. The crossing is about half way between the two depots. In passing down the track from the Woodruff house, the Court street crossing is in perfectly plain sight for some seventy or eighty rods, so that a person on or near the crossing could see and he distinctly seen for that distance, there being nothing whatever to obstruct the view.
    The deceased, at the time of the accident, had been to a limekiln, near by, for a pail of mortar. He left the limekiln along the path leading up, and west along the track, toward Court street crossing, on his way home, where he»and his family had resided for many years, near the lower depot. The last that was seen of the deceased until the' instant the engine struck him, he was crossing the cattle guard at the south end of it, and west of “Court street, where a path leaves the Court street crossing. Engines in the business of the road are constantly running across it, and at all hours of the day and night; and working trains, regular trains, extra trains and shifting trains are passing between the two stations night and day.
    A special train, with the superintendent and other officers on board, came down the road from the north, and stopped at the upper depot. It was not on the regular time of any train. The passenger cars were left at the depot, and the engine and tender started for the lower depot. It came around the curve down to, and across, the Court street crossing at a speed of from twelve to fifteen miles an hour. There was evidence to show that the whistle was not sounded nor the bell rung, as it approached the crossing; that the engine was not slowed as it approached the crossing. The testimony was conflicting as to the ringing of the bell and sounding of the whistle; the plaintiff’s witnesses swearing that they did not hear it, although near by, and the defendants’ testifying that both bell was rung and whistle sounded. About twenty feet from the ditch or cattle guard, it struck the deceased, and he died in about thirty-six hours. The engine came up behind him and carried him some forty-five feet from where it struck him. He was, when struck, some twenty-five -feet inside of the west line of the street or highway. A shifting engine had gone in the opposite direction.
    The engineer, the fireman, and a boy who got upon the engine at the upper depot, were on the engine at the time. There was no signal man on the crossing, and no watch or look-out was kept by those on the engine to see whether the crossing was clear. The deceased could have been seen from the engine perfectly plain for some sixty or eighty rods, had a look-out been kept. The engineer was on the opposite side of the engine in a place where, as he swore, he could not see the track six feet ahead of the engine; on the other side of the engine the deceased would have been in plain view. The fireman had left his place and went to piling up wood in the tender. The boy had nothing to do with the engine, having merely jumped bn for a ride between the depots. When the engine struck the deceased, he was within the bounds of the street or highway.
    At the close of the plaintiff’s evidence, the defendants’ counsel moved for a nonsuit, on the ground that the deceased was guilty of negligence, which was refused, and exception taken.
    Some other questions were raised, not material to be stated.
    The jury found a verdict for the plaintiff, and, on appeal, judgment was affirmed at General Term, and the defendants appealed to this court.
    
      S. T. Fairchild, for the appellants.
    
      Hammond, Winslow & Williams, for the respondent.
   Miller, J.

The main question which we are to determine in this case is, whether the deceased was guilty of negligence which contributed to the injury that caused his death. At the time when the occurrence took place, he was on , the public highway, where he had a perfect right to be, for the purpose of traveling, or of crossing the track. He was familiar with the locality, having lived for some time in the neighborhood, and, probably, was acquainted with the times for the running of the trains. It was not the time for any regular train to pass; but engines and trains were passing at all hours of the day and night. The engine was running at a speed of fifteen miles an hour, and another engine, called a shifting engine, had gone in an opposite direction to the one which ran over the deceased, of which fact the deceased must have been advised.

The evidence does, not show, whether the deceased, before attempting to cross, looked up and down the track to ascertain whether a train was coming; but, it appears the engine or train was in plain sight, as he could see for a distance of seventy or eighty rods.

It is a fair and reasonable presumption, arising from all the circumstances attending the transaction, that he did not look, for had he done so, he must have seen the engine approaching, and he could have escaped, and his life would have been saved.

I think, therefore, that we must assume, that he did , not look, and, in failing to do so, he neglected a plain and imperative duty, and was guilty of negligence, which precludes a recovery. A traveler, in crossing a railroad track, is bound to exercise at least ordinary sense, prudence and capacity, and this requires, that he should use his ears and eyes, so far as he has opportunity to do so. Hone of the cases adjudicated exonerate him from thus employing his faculties; and those which are relied upon as sustaining a contrary doctrine are exceptional, and present more strong and controlling facts, which prevented the party from hearing or seeing the train, so far as I have been able to discover. The later cases, which are supposed to uphold the doctrine, that a party is exonerated from the charge of negligence who does not look, only go to the extent of holding, that a party is not, in law, guilty of negligence in not seeing an approaching train, when crossing a railroad track, when circumstances existed, which tended to show, that the sight was obstructed, or to render it at least doubtful, whether the party was in fault, so that it was proper for the jury to pass upon the question of negligence.

Without examining all the cases bearing upon the question, I will refer briefly to a few recent cases, which are considered as applicable and decisive.

In Brown v. The N. Y. C. R. R. Co. (32 N. Y. 397), a train had passed, and the plaintiff had stopped for it. A single car had followed at a distance, and he had waited for that, other cars followed, which were not anticipated, and of which the plaintiff had no notice or warning, and it was held, that he was not guilty of negligence in the eye of the law, in not anticipating the detached cars which followed in the rear of the train that had passed.

In Sullivan v. The N. Y. C. R. R. Co. (34 N. Y. 29), the same facts existed as in the case last cited, and the same rule was applied.

In Beisiegel v. The N. Y. C. R. R. Co. (34 N. Y. 622), there were freight, cars on one of the tracks, which interrupted the plaintiff’s vision, and prevented his seeing the engine approaching, and it was held, that he was not, in law, guilty of negligence.

In Ernst v. The H. R. R. R. Co. (35 N. Y. 9), it was doubtful, whether the deceased did not look up and down the track as far as he could see, and whether, if he had done so, he could have seen the approaching train; also, whether he was not misled by the failure to show the flag in accordance with previous custom; and it was decided, that the question of negligence of the deceased was for the jury.

It will be seen, that none of the -authorities cited present a case, where the person injured or killed had a full opportunity to see the train as it was moving along, and that there were obstructions to the view, which is not the case here.

It is said, that the deceased had no occasion to look behind him, as the engine from which he might reasonably expect danger at the time was in an opposite direction; that his attention would naturally be directed there; and that it was not within an hour fori any regular train to pass. There was evidence to show, that trains were passing without regard to the time table, and every one conversant with the operations of a railroad is aware, that extra trains are ofteny run out of the usual order, and without regard to regularity, so as to render it unsafe -to pass a crossing, during the daytime, without taking an observation to see whether a train is then likely to pass. It was remarked by Denio, J., in Wilds v. The H. R. R. R. Co. (29 N. Y. 325), No one can be secure against being met by an engine, except by ascertaining, by his own senses, that no train is approaching in •either direction, within a distance which will endanger his safety.” There is much force in this suggestion; and it would, in my opinion, furnish a very imperfect and unsafe protection to a traveler to rely merely upon his knowledge of the time table, or upon the fact, that an unusual train had passed in an opposite direction, and, therefore, none other could be expected. The reason urged, I think, furnishes no sufficient excuse for the neglect of the deceased to use his faculties, and for neglecting to exercise a proper degree of vigilance and care.

It is said,, that, as no bell was rung, or whistle sounded, the deceased was not negligent in not hearing the train as it came near the crossing. The testimony on this subject was conflicting, and we must, therefore, assume, that these signals were not given. Does their omission relieve the deceased from the charge of negligence, which contributed to produce the disastrous result which followed ? In Ernst v. The H. R. R. R. Co. (35 N. Y. 9), before cited, the opinion of one of the judges holds, that the omission of the customary signals is a breach of duty, and an assurance to the traveler, that no engine is approaching from either side, within eighty rods of the crossing, and that he may rely on such assumption without incurring the imputation of a breach of duty to a wrong-doer. Upon a retrial of the case, a verdict was rendered in favor of the plaintiff, and, on an appeal to this court, the judgment was affirmed. Several of the judges placed their decision upon other and different grounds, than the failure to give the necessary signals, and I do not understand, that a majority of the court held, that such neglect was an assurance of safety, which relieved the wayfarer, who did not look, from the imputation of negligence. In Beisiegel v. N. Y. C. R. R. Co. (supra), the same doctrine is substantially reiterated in one of the opinions which was laid down in the Ernst case; but the case was not decided entirely upon any such ground. Morgan, J., who also wrote an opinion, concedes, that it is the duty of a person, who is about to cross a railroad track, to make an observation before crossing; ” but he considers him relieved from the charge of negligence, when ‘.‘the vision is constantly obstructed by intervening obstacles, where it is often very difficult to see up and down the railroad track, beyond the space of one or two buildings.” He also remarks, “when a man on foot reaches a point near the crossing, and listens, and hears no signal or warning, I think he is not guilty of negligence for attempting to cross the track, in a case where he cannot see up and down the t/rack by reason of obstructions.” As we have already seen, the decision of each of these cases depended very much upon the fact, that the vision of the person killed or injured was obstructed by. surrounding objects, and, hence, they cannot be regarded as settling, definitely, the principle, that a neglect to give the signals exonerates a person from liability, when he fails to look, and has the means of seeing, if he does thus look.

A series of adjudications are in conflict with this doctrine. In Sheffield v. The R. & S. R. R. Co. (21 Barb. 339), the plaintiff was in plain sight of the track, with nothing to obstruct his view. Yet it was held, that it was inexcusable negligence, which contributed to the injury, which precluded a recovery. There was evidence on both sides as to the ringing of the bell, but the verdict being in favor of the plaintiff, it settled the question, that no signal was given. In Brooks v. Niagara Falls R. R. Co. (25 Barb. 600), it was assumed, that no bell was rung, and decided, that a person who crosses a railroad track in ignorance of the" approach of a train, when the danger may be easily seen by looking for it, is fairly chargeable with negligence. This case was affirmed on appeal by this court; and it was held, that an attempt to cross a railroad track, without looking up and down to see if a train is approaching, is such an act as a man of ordinary prudence would hardly be guilty of. (See 27 Barb. 532, note.) In Lascomb v. The State Line & Buffalo R. R. Co. (27 Barb. 221), it was held, that, to authorize a recovery against a railroad company, for damages sustained by reason of the neglect of the agents to ring a bell, or sound a whistle, it must appear, that such neglect was the sole cause of the damage; and, if the plaintiff was liimself guilty of negligence, which contributed to the injury, he cannot recover, notwithstanding this omission of duty by the company.

In Mackey v. The N. Y. C. R. R. Co. (27 Barb. 528), although the fact, whether a signal was given, was in doubt, and the jury found against the defendant; the new trial was granted on account of the plaintiff’s negligence.

In Steves v. The Oswego and Syracuse R. R. Co. (18 N. Y. 422), this court held, that it was not enough to entitle the plaintiff to recover, that he established ; that the defendant neither rang the bell nor sounded the whistle, where the plaintiff himself was guilty of negligence in not seeing or hearing the cars, and a nonsuit on the trial was sustained.

In Mackey v. The New York Central R. R. Co. (35 N. Y. 75), the liability of the defendant was put upon the ground, that the company had obstructed the view of travelers on the public highway, by piling wood, so that the approach of a train could not be seen at the crossing until the traveler was on the track.

In Renwick v. The New York Central R. R. Co. (36 N. Y. 132), it appeared that the plaintiff had stopped and listened from four to six rods from the track, and hearing no signal and no indication that the train was approaching, he started his horses and continued looking until he reached the track, and then turning his eyes to the right, found them upon him, the judgment for the plaintiff was upheld.

The effect of the cases cited is to sustain the principle, that, where the negligence of the party injured or killed contributes to produce the result, he cannot recover; and that the omission of the company to ring the bell or sound the whistle near the crossing of a highway does not relieve the person, who is about to pass over the highway, from the obligation of employing his sense of hearing and seeing, to ascertain whether a train is approaching. They are entirely applicable to the case before us, and, in the absence of any authority which holds a contrary doctrine where the naked question is presented which now arises, I think they are decisive and controlling.

It is very plain, that the deceased could have seen the approaching train, had he looked for that purpose. There were no obstructions to his vision, and no occasion to divert is attention which excused him from observing. He recklessly and carelessly neglected to exercise that prudence and care which the circumstances demanded, and exposed himself needlessly and unnecessarily to danger and to certain death. His negligence was inexcusable; and, as actions of this character are founded upon the principle, that the party claiming damages must not contribute to produce the injury, it is difficult to see how any negligence of the party inflicting the injury, can obviate the difficulty. To prove that a party is excused where he has been careless, because the other party has failed to give the accustomed signals, or for any other act pf negligence on his part, strikes at the principle upon which such actions are based. Such a rule is not sustained by any of the adjudged cases. And from the consideration I have bestowed upon the subject, I am not prepared to uphold such a doctrine. The motion for a nonsuit, in my judgment, was improperly overruled, and for this error the judgment should be reversed, and a new trial granted, with costs to abide the event.

Grover, J.

The only question necessary to examine in the present case arises upon the exception taken by defendants’ counsel to the denial of his motion for a nonsuit. This motion was made upon the following, among other grounds: That the intestate was guilty of negligence, contributing to the injury received by him. It is unnecessary to consider any of the other grounds; the testimony relating to this was in no essential particular conflicting. It was proved, that, in the day-time, the deceased was walking upon or by the side^ of the track of the defendants’ road, in the village of Water-town, toward Court street; that, after he had got within the bounds of the street, as settled by the verdict, and within about twenty feet of the traveled portion thereof, he was struck by an engine, running upon the defendants’ road at the rate of twelve or fifteen miles per hour, in the same direction the deceased was walking, and received thereby an injury causing his death; that this engine could have been seen by the deceased where he was walking, and where he was struck, for a distance of fifty or sixty rods, had he looked behind him along the track; that there was nothing to obstruct the view for that distance. The only question in the case, therefore, necessary to consider is, whether it was negligence in the deceased to expose himself in that dangerous position, without even looking along the track behind as well as before him, to see if there was a train approaching. That he did not look, is established by the fact that if he had, he must have seen the train in ample time to have enabled him to step off from the track, and thus have avoided the danger, which he failed to do. There was no explanation of this conduct of the deceased; no evidence of any other engine in motion in the vicinity, or any cause whatever, assigned for diverting the attention of the deceased from his own safety. Under such circumstances, to walk along or stand upon a railroad track without availing himself of the sense of sight as well as hearing, to ascertain whether there was danger in such position, is not only negligence, but borders upon rashness. It is no answer to say that this engine was not moving at that point upon the time of any regular train. If the deceased was sufficiently acquainted with the business of the defendants as to know the time of the different trains, he must also have known that working and other trains and engines passed over the road, or portions of it, at other times; that it was necessary for them so to do, in order to avoid the regular trains. It would be the grossest carelessness for one to place himself upon the track without at all attending to his safety, relying upon the fact that it was not the time for a regular train to pass over that portion. That this negligence of the defendant contributed to his injury, is manifest from the fact that, had he not been guilty of it, he would have known of the approach of the engine, and have avoided the collision by stepping off the track. If the deceased had ordinary hearing, it is almost inconceivable that he failed to hear the train, whether or not the bell was rung, in season to have avoided the danger, unless his attention was thoroughly engrossed by something foreign to his own safety in the position in which he had' placed himself. He certainly could not have been relying upon any assurance of the defendant that no train was approaching, from their failure to ring the bell, for the reason that, had he listened enough to make sure that no bell was ringing within eighty rods behind him, he must have heard the noise of the engine in season to have avoided the danger, by leaving the track. All the authorities agree that no recovery can be had where the negligence of the party injured has contributed to the injury. The cases have been so often reviewed, that a repetition would be superfluous. The judge erred in not granting a nonsuit, on the ground of the negligence of the deceased.

The judgment appealed from must be reversed, and anew trial ordered, costs to abide the event.

Judgment reversed.  