
    Daniel Owen and Jeremiah G. Lugar, Plaintiffs and Respondents v. The Hudson River Railroad Company, Defendants and Appellants.
    1. Where the negligence of two parties using the public highway concurs, and the negligence of each contributes, to produce collision and injury, neither can recover damages from the other for the injury so received.
    2. When the negligence of one of the parties consisted in carelessly driving a stage across the track of a railroad, (laid in the streets of a city,) in front of a car approaching thereon, the fact that such car was not furnished with proper brakes, and could not therefore be promptly stopped, only creates a case of concurring negligence of both parties, producing collision and injury, and the railroad company are not liable.
    3. If, therefore, the plaintiffs’ agent and stage driver be negligent on his part, in carelessly crossing a railroad track, and receives injury by a collision thereon with a car, it is erroneous to instruct the jury, that if, when the driver of the car saw the driver of the stage attempting to cross the tracjr, the car driver, hy ordinary care, could have slackened the speed of his car if the brakes had been in good order, so as to have avoided a collision, the defendants are liable.
    4. A rail company is bound to keep its cars in good and safe working order, and is also bound to cause them to be driven in a careful manner; and if, in either particular, they are negligent, they are liable to any one who, without concurring or contributing negligence on his part, is injured thereby, but to no others; and it makes no difference in which of those particulars the negligence of the railroad company consists, or even that they are negligent in both respects.
    (Before Hobtman and Woodeuit, J. J.)
    Heard April 11,
    decided July 7, 1860
    
      In this action, a new trial was ordered by the general term, on the 30th of January, 1858, for reasons stated in the opinion of the court. (Reported 2 Bosw. 374.) It was brought to trial accordingly, on the 9th of February, 1859, before Boswobth, Chief Justice, and a jury.
    The action was brought to recover damages sustained by the plaintiffs, by two collisions between their stages, or omnibusses, and a car of the defendants. The facts in controversy and the evidence, so far as is" material to make the points discussed and the decision of the court intelligible, are stated in the report of the case on the former trial, as contained in 2d Bosw. And, when the plaintiffs rested,, the defendants moved for a non-suit, as on the former trial, on the ground that the proofs showed that the collision and consequent injury to the plaintiffs’ stages, were caused by the negligence of the plaintiffs’ driver, in attempting suddenly to cross the track of the railroad in the Tenth avenue, in New York city ; and in one instance, in turning his stage on to the track just as the car of the defendants was approaching, and at a place where the approach of the car could be seen for a long distance, and would have been seen if the driver had looked in that direction, as he ought to have done; and, also, that no proof of negligence on the part of the driver of the car was shown. The motion was denied, and the defendants excepted. The proof not only tended to show such negligence in the drivers of the stages, but the plaintiffs claimed that negligence on the part of the driver of the car was shown—and other evidence tended to show that after he saw the danger of collision, he did all in his power to stop the car—but there was also evidence that the brakes on the defendants’ car were not in good working order, and the car could not, for that reason, be stopped so soon as if they were in proper repair.
    The counsel for the defendants then asked the court to charge the jury, that if the plaintiffs’ drivers were guilty of negligence, then the defendants would not be liable, provided the drivers of the cars used reasonable care and skill in the use of the means which they had to avoid the accident.
    [The court refused to charge in the precise terms of the said request, but in respect thereto charged the jury as is hereinafter stated, to which refusal the -defendants’ counsel then duly excepted.]
    The defendants’ counsel then asked the court to charge ' the jury, that if the plaintiffs’ negligence in any degree contributed to the accident, the plaintiffs cannot recover, although they believe the brakes were out of order.
    [The court refused to charge in the terms of the said request, but in respect thereto charged the jury as is hereinafter stated, to which refusal the defendants’ counsel then and there excepted.]
    The chief justice charged the jury, that the plaintiffs are not entitled to recover merely because there was negligence on the part of the defendants’ drivers, or other agents, if it be also true that the drivers of the stages were negligent, and that their negligence contributed to produce the collision and injury; and this he illustrated at some length, defining what, under the circumstances proved, was negligence on the part of the drivers of the stages, and on the part of the drivers of the cars, respectively, contributing to produce the collision and injury. And he added:
    “ If both drivers were negligent, and the negligence of both concurred to produce the collision and injury, it is immaterial which of the two was most to blame. You cannot, without violating the rules of law, give a verdict for the plaintiffs on the ground that the driver of the car was negligent, even if you should find such to be the fact, provided the evidence satisfies you that the driver of the omnibus was also negligent at the time, and that his negligence contributed to produce the collision and injury. In order to recover in an action of this kind, there must' not only be negligence, on the part of the defendants, but there must have been none on the part of the plaintiffs which contributed to produce the injury. And you cannot find for the plaintiffs, unless the evidence convinces you that there was no negligence on the part of the plaintiffs’ drivers which contributed to produce the injury. The negligence of the drivers of the cars, if there was any, for all the purposes of this action, is to be treated as the negligence of the defendants. The negligence of the drivers of the omnibusses, if there was any, is also, for all the purposes of this action, to be treated as the negligence of the plaintiff's, and they are to be affected by it precisely as they would be if they had been themselves driving, and had conducted precisely as their drivers did. You will therefore determine whether either or both collisions was caused by the negligence of the defendants’ drivers, without any negligence of the plaintiffs’ drivers concurring to produce such collision. If either or both of them was, you will find a verdict for the plaintiffs. If, on the other hand, you find that the negligence of the plaintiffs’ drivers contributed to produce both collisions, then the law makes it your duty to find for the defendants.”
    ' But, in relation to the subject as affected" by the condition of the brakes of the defendants’ cars, he charged :
    “If, when the driver of the down going car saw him (the stage driver) attempting. to cross to the west, the driver of the car - going down, by ordinary care, could have so slackened the speed of his car, (if his brakes had been in 
      
      good order,} so as to have avoided a collision, the company would be liable.”
    The counsel for the defendants duly excepted to the words “if his brakes had been in good order.”
    And the chief justice continued:
    “ But under such circumstances, the company would not be liable merely because its drivers failed to use extraordinary care to avoid a collision. If, by ordinary care, the driver of the car, if it had a brake that was suitable and in a good condition, could not have prevented the collision, the company is not liable. If the negligence of the driver of the car going down consisted in a large degree in not seeing the omnibus until it was too late to prevent a collision, even if the brake had been a good one and in good order, then such negligence was of the same character as that of the driver of the omnibus, in not seeing the dar approaching until it was too late for him to pass out of its reach.”
    The jury rendered a verdict for the plaintiffs for $951.61 damages,
    The defendants moved for a new trial at special term, and the motion being denied, they appealed to the general term.
    
      Wm. Fullerton, for the Defendants, (Appellants.)
    I. The court erred in refusing the motion to dismiss the complaint on the ground that the plaintiffs’ negligence contributed to both accidents.
    As to the first accident, the driver’s negligence consisted in “suddenly” driving on the track ahead of the car, with a wet weather cap on. his head, tied under his chin, without looking to see whether a car was approaching, when he knew it was the regular time for the car to pass.
    As to the second accident, the negligence of the driver consisted in attempting to drive across the two tracks of the railroad,.from one side of the avenue to the other, with two cars gding in. opposite directions approaching, when it was impossible to avoid them. (Steves v. Oswego and Sy. R. R. Co., 18 N. Y. Rep. 422.)
    II. The judge erred in charging the jury that, “ If, when the driver of the down car saw the driver of the stage attempting to cross to the west, the driver of the car going down, by ordinary care, could have so slackened the speed of the car, (if his brakes had been in order,) as to have avoided a collision, the company would be liable.”
    The words, if his brakes had been in order,” were excepted to by defendant..
    This was equivalent to charging the jury, that notwith-' standing the driver of the stage may have been guilty of negligence, yet, if the accident could have been prevented if the brakes had been in good order, the defendant is responsible. In other words, the jury were told that if the concurring negligence of both drivers caused the accident, yet the defendant is responsible, if the jury think that the accident would not have occurred had the defendants not been guilty of negligence.
    This cause was once sent back for a new trial for a similar error. (Owen v. Hud. R. R. R. Co., 2 Bosw. 380 ; see, also, Button v. Hudson R. R. R. Co., 18 N. Y. Rep. 248 ; Steves v. Oswego and Sy. R. R. Co., supra.)
    
    The order appealed from should be reversed, and a new trial ordered.
    
      J. W. Gerard, for the Plaintiffs, (Respondents.)
    I. The question of negligence on the part of the plaintiffs or defendants, or both, is a question of fact for the jury, which, being determined by them, will not be disturbed ordinarily by an appellate court.
    
      a. If a defendant moves for a nonsuit at the close of plaintiff’s evidence, even if he is entitled to it, if he gives evidence afterwards to disprove negligence, he waives an exception taken to a denial of the court to grant his motion being made on the ground that no negligence was found.
    
      (Colegrove v. N. Y. and H. R. R. Co., et al., 6 Duer, 383.)
    
      II. The court was correct in refusing to charge the jury in the precise terras of the first request of the defendants’ counsel for the following reasons, viz:
    
      a. The request is that, presuming the plaintiffs to be guilty of negligence, and that the defendants “used reasonable care and skill in the use of the means which they had to avoid the accidents,” then the plaintiffs cannot recover. The defendants were not only required to use such means as they had, but they must have at least the usual and ordinary means of preventing collisions, or the failure to have such means will be negligence of itself. (Hegeman v. Western Railroad Co., 3 Kernan, 9; Smith v. N. Y. and Harlem Railroad Co., 6 Duer, 225; Smith v. New Haven Railroad, Co. 19 N. Y. Rep. 127.)
    
      b. The evidence shows that the brakes of the cars were useless in both cases.
    III. The court substantially charged the jury as requested by the defendants’ counsel in his second request.
    IY. The same remark applies to the third and fourth request of defendants’ counsel; the court was correct in refusing so to charge. The question of negligence is one for the jury to determine, and it would be error to charge the jury that such negligence was apparent. (Poler v. N. Y. Central Railroad Co., 16 N. Y. Rep. 476; Smiths. N. Y. and Harlem Railroad Co., 6 Duer, 225.)
    Y. Negligence on the part of the plaintiffs is not to be presumed; and, therefore, direct evidence to disprove it is not required from the plaintiffs in the first instance; and where there is conflicting evidence and the preponderance is with the plaintiffs, they are entitled to recover. (Button v. Hudson River Railroad Co., 18 N. Y. Rep. 248.)
    
      a. There is no evidence of any negligent act on the part of the plaintiffs in the case; none is contained in the evidence of Charlotte Russell, and in the evidence of Charles Starr. Even if there is evidence of neglect here, (and the jury have decided the contrary,) there is certainly a preponderance of testimony on the plaintiffs’ part, proving their guiltlessness of negligence. VI. Where a presumption of negligence has been established against a defendant, in an action for damages resulting from an accident, it can only be rebutted by proving that the accident resulted from circumstances against which human prudence and foresight could not guard. (Bowen v. N. Y. Central Railroad Co., 18 N. Y. Rep. 408.)
    
      a. A presumption of negligence was surely established against defendants, and there was no proof, of the kind required by the above decision, offered.
    VII. It is insisted that the defendants were guilty of gross negligence, in not having the brakes to the car in an available condition. (Hegeman v. Western Railroad Co., 3 Kernan, 9; Smith v. N. Y. and Harlem Railroad Co., 6 Duer, 225; Smith v. New Haven Railroad Co., 19 Smith, 127.)
    
      a. A grossly negligent injury is never tolerated, be the negligence on the part of the plaintiff what it may. (Hartfield v. Roper, 21 Wend. 615.)
    
      b. Gross negligence is the want of slight cáre and diligence. (Bouvier’s Law Die.) JYegligence.
    
    VIII. No negligence on the part of the plaintiffs has been shown, and the judgment of the court below should be affirmed.
    
   By the Court. Woodruff, J.—This

cáse came before the general term in January, 1858, on appeal from a judgment in favor of the plaintiffs. It appeared from the case a.s there presented, that the judge presiding at the trial had charged the jury that “ if the jury believed that the brakes of the defendants’ car were not in good or sufficient working order, so that they were inefficient for the purpose of checking the progress of the car; and if they were satisfied that the driver of the car had time enough, after he discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order, then the plaintiffs were entitled to recover, notwithstanding the plaintiffs’ driver (of the stage) was guilty of imprudence or carelessness in getting into such a position.”

This instruction was held by the general term, erroneous, and the judgment was reversed, and a new trial ordered for this error. (See the case reported 2 Bosw. 374, and see note on page 380.)

On such second trial, the chief justice charged, in general terms, and with great distinctness, that if both drivers were negligent and the negligence of both contributed to • produce the collision and injury, it is immaterial which was most to blame; that if the negligence of both drivers concurred to produce the injury, the plaintiffs cannot recover. But he also charged, in view of the claim of the plaintiffs, that the brakes attached to the defendants’ car, were not in proper working order, as follows:

“ If, when the driver of the down going car saw him (the driver of the plaintiffs’ stage) attempting to cross (the track) to the west, the driver of the car going down, by ordinary care, could have slackened the speed of his car, if the brakes had been in good order, so as to have avoided a collision, the company (the defendants) would be liable.”

We are not able to reconcile this instruction with the former decision above stated. This instruction imports, by obvious implication, that, although the driver was active and diligent to the utmost of his power in the use of all the means at his command, and was therefore entirely free from the imputation of negligence; still, if his diligence was ineffectual by reason of imperfection in the brakes, the defendants are liable notwithstanding the plaintiffs’ servant may have been guilty of negligence in attempting to cross the track in front of the defendants’ car. In other words, if the defendants were negligent in not keeping the brakes in good order, they are liable, although the negligence of the plaintiffs concurred therewith in producing the injury.

It is unquestionable that the defendants were bound to keep the brakes of their cars in good working order, and they were bound to cause them to be driven through the streets in a careful and proper manner; and if, in either particular, the defendants neglected to perform their duty, they are liable to whomsoever is without any concurring fault or negligence injured thereby, and only to such as are free from such concurring fault or negligence.

This proposition was stated to the jury in so far as relates to the defendants’ duty to cause their cars to be properly ■ driven, and also that if both drivers were in fault and the negligence of both concurred to produce the collision and injury, the plaintiffs could not recover.

The same rule is applicable to the duty of the defendants, to keep their brakes in order. If, in this respect, the defendants were negligent and the driver of the- stage was also negligent, and such negligence of both concurred to produce the injury, the plaintiffs were not entitled to recover.

Or to present the question in another aspect: If it was negligence to attempt to drive through the streets a car which was not furnished with proper brakes, in good order, still, if the negligence of the plaintiffs concurred with that of the defendants in causing the injury, the defendants are not liable.

If the driver of the car, after he saw the dangerous position in which the plaintiff’s driver had negligently placed himself and'his stage, could, by ordinary care in the use of the means which were then at his command, have arrested the progress of the car and so have prevented the injury, it was his duty to use that care; but if the plaintiffs’ servant was, by his own negligence, placed in a situation of danger, proof of mere negligence on the part of the defendants in not having kept their brakes in good order, only proved a case of concurring negligence of both parties, for the consequences of which, neither was liable to the other.

This, we understand, to be the decision of the general term when this case was before the court on the former appeal. We forbear, therefore, from discussing the questions at length or reviewing the authorities.

The order appealed from must be reversed, and a new trial must be ordered, costs to abide the event.

Ordered accordingly.  