
    Rose Heaney, as Administratrix, etc., Resp’t, v. Long Island Railroad Company, App’lt.
    
    
      (Court of Appeals.
    
    
      Filed January 15, 1889.)
    
    1. Negligence—Pboof of.
    Where it is sought to hold another liable for the damage occasioned by some alleged negligent act, the negligence is to be made out by some positive proof, or by proof of circumstances, from which the jury may fairly infer the existence of neglect.
    
      %, Same—Contributory negligence.
    On the trial of an action to recover damages for the death of plaintiff’s intestate, it appeared that the accident had occurred at a point on Atlantic avenue, in the city of Brooklyn, a street which, for some distance, runs in a straight line east and west. That an opening in the fence of the defendant, which borders its track on either side, permits crossing by persons on foot. That at this point the avenue is 100 feet in width. That the testator left his house, which was on Atlantic avenue, about six o’clock in the morning in the month of May, and started to cross the defendant’s track at that point of crossing. The morning was cloudy and rainy. A train had just passed on the southern track, which was nearest to the deceased as he went through the fence, and its smoke settled down behind it upon the road sufficiently to temporarily obstruct objects in the line of vision. Deceased went ahead, and while on the northern track was struck by a west-bound train and killed. He was about sixty years of age and his hearing was somewhat impaired. Held, that defendant was not liable; that it was the duty of the decedent to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing.
    3. Same—When a question for the jury.
    While negligence may be made out from the proof of all the surrounding circumstances, including the absence of signals and the rapid speed, yet unless there is something in that proof, taken as a whole, which, if believed by the jury, would establish a failure on the defendant’s part to perform a legal duty, or to use reasonable care and prudence in what it did, the case should not be submitted to them.
    Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment in favor of the plaintiff, entered upon a verdict rendered by a jury at the trial term thereof.
    
      H. B. Hinsdale, for app’lt; Horace Grooves, for resp’t.
    
      
       Reversing 9 N. Y. State Rep., 707.
    
   Gray, J.

At the close of the plaintiff’s case the defendant’s counsel moved for a dismissal of the complaint; on the ground that the plaintiff had failed to show negligence on the part of the defendant and that the evidence proved that the deceased had by his negligence contributed to the accident. This motion was denied by the court and at the close of the whole case, the motion for a non-suit was denied. On appeal the judgment entered for the plaintiff on the verdict of the jury and the order denying a new trial were affirmed,'

We are unable to discover from the evidence that the plaintiff either established her right to recover against the defendant for the death of the intestate; or that there is sufficient proof in the case to sustain a recovery and we think the denial of the motions was error for which this judgment must be reversed. A brief review of the facts will make this conclusion sufficiently clear. The accident occurred at a point on Atlantic Avenue, in the city of Brooklyn, a street, which for some distance there, runs in a straight line east and west. An opening in the fences of the defendant, which border its tracks on either side, permits crossing by persons on foot. At this point, the avenue is one hundred feet in width. The deceased left his house, which was on Atlantic avenue, about six o’clock in the morning, in the month of May and started to cross the defendant’s tracks at that point of crossing.

The morning was, according to plaintiff’s evidence, cloudy and rainy or drizzly. A train had just passed on the south track, which was nearest to the deceased as he went through the fence, and the smoke from its engine appears to have settled down behind it upon the road sufficiently to temporarily obscure objects in the line of vision. . The deceased, however, appears to have gone ahead and, while upon the north track, was struck by a west bound train and killed. He was about sixty-six years of age and his hearing somewhat impaired. Whether the engineer sounded the whistle or rang the bell, is a fact in dispute; but it is not one material to be considered, as there was no statutory obligation resting upon the defendant to give notice in either way, while operating its road at that point. It was not legally required to give such notice by any statute, nor did any ordinance demand it.

By chapter 187, Laws of 1876, the defendant was authorized to operate its railroad on Atlantic avenue, subject to such rules and regulations as to rate of speed and public • safety as the common council should, prescribe. That municipal body directed the construction of the fence on either side of the defendant’s tracks, with openings and crossings at every street and spaces at intervals of not exceeding 250 feet, to allow the crossing of persons on foot. They prescribed it as a duty of the company to station a flagman at certain points, of which the point in question is not one, and they authorized the defendant, after compliance with these precautionary provisions, to run at any rate of speed. The defendant in this case seems to have violated no duty to the public, based on the existence of any rules or regulations, in not having any flagman at the crossing; or in not causing notice to be given of the approach of its trains'; or in running at the rate of speed testified to as being twenty miles an hour. If then not liable to the charge of negligence on such grounds, on what ground can it be deemed to have been in any wise derelict ?

The general, term do not point to any act of omission or of commission by the defendant from which negligence and a consequent liability might be inferable; but they say only that they think “it was a question of fact for the jury to determine whether, under the circumstances of the case, the company exercised reasonable care and prudence in what they did and whether its neglect caused the injury complained of.” This seems somewhat obscure as a reasoning upon the case, in the absence of some positive facts constituting or tending to prove neglect or heedlessness on the part of the defendant. While it is perfectly true that negligence may be made out from the proof of all of the surrounding circumstances, including the absence of signals and the rate of speed, yet, unless there is something in that proof,. taken, as a whole, which, if believed by the jury, would establish a failure on the defendant’s part to perform a legal duty, or to use reasonable care and prudence in what it did, the case should not be submitted to them.

In Grippen v. N. Y. Central, etc., R. R. Co. (40 N. Y., 43-47), cited by the court below in their opinion, Wood-ruff, J., said, in discussing what constitutes negligence, “ some acts are so clearly free from imputation of that sort that it would be the duty of the court, as matter of law, to hold that they constituted no proof of negligence. While, when the facts are themselves in dispute, or upon the proofs, their wisdom or efficiency is doubtful, the jury must decide whether negligence was proved.” This is a fair statement of the rule. There is in this case no dispute as to material facts. The defendant’s servants were not operating the train of cars at an unauthorized rate of speed. No flagman was required to be at the crossing, and no signal was called for at that point. As to the general management of the train, the case is without any proof of any fault in that respect.

The respondent’s counsel does intimate ¿hat because there was smoke upon the road at that point, and it was therefore impossible for the engineer to tell what was passing on the other side of it, he should have given some alarm or signal. But how can it be said that any obligation rested upon the engineer to give any signal ? He certainly was not bound to exercise his imagination and to apprehend danger to some reckless person. It would be unreasonable to hold the defendant to the duty to give a signal of the approach of its trains to the frequent openings in the fence, directed to be constructed for the convenience of the public, under the circumstances of the present case; which, of their own force, call upon a person for the exercise of his reason and the use of his senses in its avoidance.

The rules which, by frequent adjudications, have been established in cases of negligence, rest upon reasonable foundations. Where it is sought to hold another liable for the damage occasioned by some alleged negligent act, the negligence is to be made out by some positive proof, or by proof of circumstances from which the jury may fairly infer the existence of the negligence. But we think from the proofs that the intestate was, as matter of law, guilty of negligence in his conduct, which contributed to the accident. '

According to the plaintiff’s evidence, the deceased after entering through this opening in the fence, upon the defendant’s track, went straight ahead, regardless of the smoke which was between him and the track on which he was struck. The court below reason upon this act and say that they should hold it was the duty of the deceased to stop until the temporary obstruction of the smoke had passed away, if he could be held to know that the obstruction existed. This is a distinction which is perhaps somewhat metaphysical and not altogether clear to the comprehension We think it was unquestionably his duty to await the disappearance of the smoke, and thus to be reasonably sure that he had a clear crossing. The deceased could see, and it is hard to understand how the existence or presence of the smoke, as an obstruction, could have been the subject of speculation or of a mental question. If it was indistinguishable as a body, it could no more have obstructed the vision than would the usual conditions of the atmosphere. If it was a body, perceivable as contrasted with other objects, it was to a greater or less extent an obstruction or embarrassment to the vision. Visual perception of objects involves a consciousness of their appearance. We cannot think of appearance except as something seen. Philosophy teaches us that our knowledge of the external world is phenomenal; that is, that the things of which we are conscious are appearances. Thus, to say that the deceased may not have known that the smoke was an obstruction, involves /the proposition that he may not have been conscious of the appearance of a condition of the atmosphere, distinguishable from its other or usual conditions; which is so unreasonable that habit disables us from understanding it.

We think it perfectly clear that, if the plaintiff’s evidence is to ba believed, the deceased voluntarily went upon the tracks—always a situation involving peril, and calling for the vigilant exercise and use of one’s senses—when the clouds of smoke made or tended to make objects indistinguishable. Where a person voluntarily places himself in a -position of peril, under circumstances which render him less able to protect himself by the use of his senses, he cannot fairly be deemed competent to complain of a consequent injury as due wholly to the acts of the other party.

The plaintiff’s proofs leave no other, conclusion possible than that the deceased had failed to observe those usual precautions which the law requires of those who approach, a place of peril. They must be on the alert, and vigilant in the úse of their eyes" and ears, and display that prudence of conduct which the situation dictates. On the other hand, as has been seen, there were no acts of the defendant, or of its servants which were open to the imputation of negligence.

It follows, from the views expressed, that the judgment below must be reversed, and a new trial had, with costs to abide the event.

All concur, except Daneorth, J., dissenting,  