
    Harshaw Scott, Resp’t, v. The Pennsylvania Railroad Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    1. Railroads—Negligence—Charge.
    In an action for injuries received at a railroad crossing the court charged that if the train came upon plaintiff so suddenly that before he could act he was caught by it, the fact that he made a mistake of judgment would not excuse the company, but if they gave him sufficient time for a man of ordinary intelligence, exercising < rdinary care, to get out of the way before he was struck, that relieved the company of liability. The court refused to charge, on request, that, “ if the vigilance and caution of the plaintiff were not proportioned to the known danger of his position, then he not entitled to recover,” except as already charged, and explained the words “ordinary care,” to mean the care of an ordinary prudent person under like circumstances. Held, that the request was properly denied, as it was too metaphysical and abstruse, and that the charge, as explained, was correct.
    2. Same—"Weight op evidence as to signals.
    Testimony of employees of defendant having charge of the hell or whistle that the proper signals were given is not necessarily conclusive as against testimony of other witnesses that they did not hear them.
    This action was brought to recover damages sustained by the plaintiff by reason of his being run over and injured by one of the defendant’s trains in the vicinity of the defendant’s station at Eahway, New Jersey.
    Upon the trial the evidence given upon both sides in respect to most of the important circumstances attending the happening of the accident was in direct conflict.
    The evidence upon the part of the plaintiff was to the effect that about ten minutes past six o’clock on the morning of November 20, 1877, the plaintiff left his house, which was situated on Milton Avenue in the city of Eahway, about 500 feet from the railroad track, along which street he proceeded a part of the intervening distance, turning thence towards the east to a saloon known as Brokaw’s, which he entered for the purpose of nurcuring a newspaper. Not finding the newsboy there, he returned a short distance in the direction of Milton avenue to what is known as Laing’s crossing, which appears to be a narrow flagged walk extending to the edge of the track across the street running alongside the railway, and about twenty-six feet east of the point.where the latter intersects Milton avenue. At this crossing the plaintiff stopped to look up and down, and not seeing or hearing anything, he started to cross the street. Beaching the track he continued without any further stop in a diagonal direction towards the platform of the depot in search of the newsboy. He crossed two tracks and was about stepping upon the third, when he was struck by an express train running from Philadelphia to New York, and received the injuries which formed the basis of his claim for recovery in this action. The morning was dark and foggy, and he heard no whistle or bell and received no warning of the approach of any train, nor was there any flagman at the Milton avenue crossing. The testimony of the plaintiff with regard to the character of the morning was corroborated by that of two other witnesses, one of whom (the newsboy, Drake) stated that it was a foggy, dark sort of morning, so dark that he did not think he could have seen a person within twenty feet of him. These witnesses also testified that they did not hear any whistle blown or bell rung until the sounding of the alarm whistle when the train was in the vicinity of Milton avenue; the newsboy further stating that the train was going very fast and passed him at the further or eastern end of the depot about two seconds after he beard the alarm whistle.
    The testimony on the part of the defendant was, that the morning was not dark and foggy, but was, at most, a little hazy, and so that surrounding objects could be readily seen; and the engineer and fireman on the train in question testified that the bell on the train was started and rung continuously from 150 to 250 yards west of the station, and that the alarm whistle was blown by the engineer about 150 feet from the plaintiff, giving him a period variously calculated at from seven to thirteen seconds to get out of the way of the approaching train. There was also evidence that when the plaintiff was picked up his breath smelled strongly of liquor, but this was controverted by the testimony given in rebuttal on his behalf.
    In addition to the foregoing the plaintiff put in evidence ordinances of the city of Eahway from which it appeared that all trains were prohibited .from passing street crossings where there are no flagmen at a greater rate of speed than five miles an hour.
    
      Osborne B. Bright, for app’lt; R. A. Pryor, Jr., forresp’t.
   Brady, J.

The evidence given upon the trial created a decided conflict and made the submission of the issues of fact eminently proper. It cannot be said with propriety that there is a preponderance in favor of the defendant, however seriously that view is asserted. The quality of proof and not the number of witnesses determines its weight and value. It will be a rare result in a case kindred to this where testimony pro and con has been given to find other than a conflict; indeed such an one as will justify either of two conclusions.

This view suggests, therefore, that the judgment appealed from must stand unless some rule of law has been violated which requires a reversal. This has not been found. The learned counsel for the defendant has essayed by great zeal to cover every possible chance for reversal in case of defeat, but the cause was carefully conducted, the charge was liberal and comprehensive, and no available errors were committed. Indeed all the requests to charge were granted but one, and one exception only was taken to the charge itself. These incidents are mentioned in corroboration of the statement that the charge was liberal and comprehensive, and being so is not likely to be exceptionable.

The respective doctrines of negligence and contributory negligence were fully and distinctly presented and no objection was interposed thereto.

The learned judge had charged, and which may be regarded as relating to contributory negligence:

“ Of course if a man is confronted with a certain danger requiring him to act with great suddenness and makes a mistake of judgment, he is not liable for that mistake of judgment. If ii came upon him so suddenly that before he could act he was caught with the train, that fact would not excuse the company, but if they gave him sufficient time for a man of ordinary intelligence, exercising ordinary care, to get out of the way before he was struck, that relieves the company of liability, and you should find a verdict for the defendant.”

And the learned counsel for defendant said: “I except to that portion of your charge which says that if the train came upon him so suddenly that he was bewildered and made an improper move, that would relieve him. from responsibility,” which was the only exception to the charge taken, but the court responded as follows, to which no exception was taken.

The Court—You except to what I said on that subject. I intended to say if it came upon him so suddenly without fault upon his part, and before he could get out of the way, acting as a person of ordinary intelligence would do, and he was injured, he is not responsible for an error of judgment.

There can be no doubt upon the authorities that in such an emergency as that described errors of judgment cannot be invoked against the injured person. When by the negligence of another one is placed in a position of peril, he is not responsible for an error of judgment in the attempt to escape. Coulter v. Express Co., 56 N. Y., 585 ; see, also, Twomley v. R. R. Co., 69 id., 158 ; Hoag v. R. R. Co., 111 id., 203; 19 N. Y. State Rep., 80.

The exception to the request to charge appears on the record thus. The learned counsel for the defendant asked the court to charge :

“ If the vigilance and caution of the plaintiff were not proportioned to the known danger of his position, then he is not entitled to recover, and the verdict must be in favor of the defendant,”' upon which the following colloquy took place :

The' Court—I decline to charge that, except as I have already charged. I think I have entirely covered the question of contributory negligence and gone as far as the law allows.

Mi*. Bright—Your honor used the words “ ordinary care.” I except to that.

The Court—Where I said “ ordinary care ” I meant the care of “an ordinary prudent person under like circumstances.”

As we have already seen, the court had, and without objection to its form or substance, covered the question of contributory negligence, and when the objectionable words, “ordinary care,” were explained, and fully, as we have seen, no further exception was taken, although it was essential to give the prior exception vitality; The phrase employed had been dissipated if erroneous by a statement of its meaning which brought it within its proper legal significance. The proposition in the request, however, was metaphysical, too abstruse for other than scientific examination and not within the province of a jury in such a case as this and on the evidence that had been submitted. It was an attempt to limit the plaintiff’s right to recover upon his vigilance and caution accurately proportioned to the danger of his position. The statement of such a doctrine refutes it. The request seems the more objectionable when in addition to the charge the following requests were granted.

“ The defendant was under no obligation to anticipate the presence of the plaintiff on its tracks east of Milton avenue, or to make provision for his safety there, when the relation of passenger and carrier did not exist and was not in contemplation. ”

“ It was not the duty of the defendant on the morning and at the time in question to have flagmen at the foot-path opposite Laing’s stable or at the other foot-paths, north of the railroad, or along the tracks or flooring traversed by the plaintiff.”

It was the duty of the plaintiff to make vigilant use of his eyes and ears when approaching the tracks and during all the time he was upon them; and if the jury believe that by a vigilant use of his senses he could have discovered the approaching train in time to escape injury, the verdict must be in favor of the defendant.”

The defendant’s counsel in addition invokes the doctrine of ' Culhane v. R. R. Co., 60 N. Y., 137, that as against positive affirmative evidence of credible witnesses of the ringing of a bell or the sounding of a whistle there must be something more than the testimony of one or more witnesses that they did not hear it. In that case, however, the witnesses for the plaintiff did not say that they listened or gave heed to the presence or absence of that signal. Such is not the proof here. But there is a further answer, .and that is the testimony of the defendant’s witnesses having charge of the bell or whistle and interested in proving that the proper signals were given is not necessarily conclusive. The law does not require an adverse party to put his case in the hands of persons having such relations to the transaction. Greany v. L. I. R., 101 N. Y., 422.

This case overrules or qualifies Culhane v. R. R. Co., supra, so far as the latter applies to witnesses engaged on the train and having charge of the signals to be given.

It is not deemed necessary to give any extended consideration to the amount of damages awarded.

The plaintiff’s right to recover involving his own freedom from fault, and the defendants’ culpability, the sum given was not too much. The subject of damages is, however, for the jury, and unless the court can say that the verdict is the result of passion, prejudice, partiality or corruption, or that the jury were improperly influenced, the court will not interfere. Avery v. R. R. Co., 17 N. Y. State Rep., 417; see Minick v. The City of Troy, 19 Hun, 253, where the rule is stated, and cases collected. The tendency to exact reparation by substantial damages in actions for personal injuries should be fostered to compel a higher vigilance in the employment of dangerous engines or instruments. Hence verdicts for $36,000, $20,701.69, $35,000 and $25,000 have been sustained. See Harrold v. R. R. Co., 24 Hun, 184; Vose v. R. R. Co., 49 Superior Court, 535; Dike v. R. R. Co., 45 N. Y., 114; Ehrgott v. The Mayor, 96 N. Y., 265.

It may be said in conclusion the accident was the result of the speed which marked the movement of the defendants’ train on a foggy morning. Speed in traveling seems to be not only an American necessity, but a joy, and passengers generally are not unwilling to take risks consequent upon the most rapid transit. Eailroad companies to a great extent seek to gratify this public desire, and no doubt too frequently overlook the danger it involves, particularly upon mornings when the obscurity of the atmosphere affects the clear discernment of objects along and ahead of the line of movement, and greater caution should be observed, even if the rate of speed must be decreased to express it. While speed and safety are to the general traveler aconsummation devoutly to be wished, disaster resulting from speed is not only never borne with fortitude, but condemned and punished if it may be.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.  