
    Porter D. Smith, as Administrator, etc., of Amy A. Smith, Deceased, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    
      Negligence — collision at a railroad crossing — what evidence presents a question for the 'jury — chm'ge that the negligence of the driver was attributable to the passenger —110,000 verdict held to be excessive.
    
    In an action to recover damages resulting from the death of the plaintiffs intestate, in consequence of a collision at a highway crossing between one of the defendant’s trains and a covered two-seated carriage in which the intestate was riding, the evidence tended to show that the intestate and her three daughters were on the back seat of the carriage, and that her husband and two sons, one of whom was driving, were on the front seat; that the accident occurred on a cold night in February; that it was not snowing, but that the wind was strong, blowing nearly in the face of the driver and carrying with it snow and dirt; that if the night had been still the headlight on the engine could have been seen by one approaching the crossing when the train was a long distance therefrom; that the occupants of the carriage were more or less bundled about their heads and necks, and that they knew that a train was due about the time that they approached the crossing; that they allowed their team to walk until near the track, and that they then started the team upon a trot, but that before they had fully crossed the track the train, which was traveling about sixty miles an hour, struck the wagon, killing the intestate, her three daughters and one of her sons.
    There was a conflict of evidence as to whether a bell was rung or a whistle sounded as the train approached the crossing.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should not be disturbed;
    That it could not be said as matter of law that the occupants of the carriage should have stopped the team so that they could look and listen more carefully than they did;
    That as it appeared that the deceased was forty-nine years of age and left a husband forty-eight years of age and two sons, aged, respectively, twenty-one and eighteen years, a verdict of §10,000 was excessive, and should be reduced to §7,000.
    
      mble, that a charge that if the driver of the carriage was negligent, the plaintiff could not recover, was more favorable to the defendant than it should have been.
    McLennan, J., dissented.
    Appeal by the defendant, the Lehigh Valley Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Ontario on the 20th day of December, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ma/rtin Oarey, for the appellant.
    
      Thomas Raimes, for the respondent.
   Williams, J.:

The judgment and order appealed from should be affirmed, with costs.

The action was brought to recover damages resulting from the death of plaintiff’s intestate alleged to have been caused by the negligence of the defendant. The death resulted from a crossing accident at Farmington. station, about twenty-five miles from Rochester, H. Y., in the open country, the highway- crossing the railroad tracks nearly at right, angles. The accident occurred about midnight February 24, 1900. The carriage in which the intestate was riding when struck by the defendant’s train was a covered -two-seated one. The intestate and her three daughters were on the back seat, her'husband and two sons were on the front seat. One of the sons was driving the team. The intestate, her three daughters and one son, were killed in the accident. The husband and the son who was driving alone survived. The night was cold. It was not snowing, but the wind was strong, blowing nearly in the face of the driver of the team, and carrying with it snow and dirt. The train was a fast one and traveling, at the time of the accident, about sixty miles an hour. On a clear day, a train, and on a still night, the headlight of a train, could be seen when the train was a long way from the crossing by a traveler along the highway as he approached the crossing. There was the usual conflict in the evidence as to the ringing of the bell and the sounding of the whistle upon the engine as it approached the crossing, the plaintiff’s evidence tending to show that the bell was not rung nor the whistle sounded; the defendant’s evidence, that the bell was rung and the whistle sounded. The ground of negligence submitted to the jury was the failure to give these signals. We have considered the evidence carefully upon this subject, and conclude that, under well-settled principles of law, we should not disturb the finding of the jury that the defendant was negligent in the matter of signals,, and that such negligence caused the death of the intestate.

The question of the absence of contributory negligence is one of more difficulty. We are often impressed in examining these crossing accident cases that the accidents ought not to occur if the travelers in the highway would exércise fairly the care in approaching crossings which the law requires. The Court of Appeals, however, in its decisions leaves little for this court to do in review ing this question in crossing cases. ■ •

In the present' case these people approached this crossing more or less bundled about their heads and necks. They knew there was a train due to pass about the time, and they had not heard it go by. They allowed their team to. walk until near the track, and in a position where they ought to have seen or heard the train which was approaching, and so near that in a few seconds it struck them. Evidently they did not see the train because they started the team upon a trot to cross the track, and before they had fully crossed the train struck them. It is difficult to see how this accident could have occurred but for the want of proper care on the part of the father and the son who was driving. If the night had be.en still, no wind blowing, no snow or dirt in the air, they must have seen the headlight of the train, if they had looked, and heard the rumble of the train, if not the bell or whistle, if they had listened, in time to have kept off the tracks until the train had passed by. The law required them to bring their minds to consider the fact that a railroad crossing was there, and to exercise their faculties of seeing and hearing, with a view to learning whether a train was coming, and avoiding accident and collision at the crossing. If the night was dark and thi wind was blowing hard, carrying snow and dirt with it, so as to make it difficult to see or hear a train if one was approaching, the duty of care was so much the greater. These people did not stop their team so that they could look and listen more carefully. If they had done so it seems as though the accident would have been avoided. But we can hardly say as a matter of law that they should have stopped their team. It was a question for the jury, under all the circumstances surrounding these people, whether the exercise of ordinary care and prudence, which the law imposed upon them, required them to stop their team. The father and son were witnesses on the trial and testified as to the care exercised by them, and as to the extent to which they exercised their senses of hearing and seeing, and they and others testified as to the kind of night and weather which was about them, and then the whole question as to the absence of contributory negligence was submitted to the jury, under a charge very carefully stating the principles of law that should govern the jury in deciding this issue, and the jury found in favor of the plaintiff. We-think, under the decisions of the Court of Appeals, this court cannot disturb their conclusion.

The court in the body of -the charge was not specific as to the rules relating to the deceased’s negligence, but seemed to convey the idea that if either the deceased or the son who was driving was negligent the plaintiff could not recover. In answer to defendant’s request at the close of the charge, the court,told the jury distinctly that if the driver was negligent the plaintiff could not recover. The defendant could not complain of this instruction. It was very likely more favorable to the defendant than strictly it should have been. There were exceptions taken by the defendant to the charge itself and to the disposition of requests made at its close. We think none of these exceptions were well taken. There were also some exceptions to the admission and rejection of evidence, but none of these present any reversible error.

It seems to us that the verdict was excessive, and that the amount of damages should be reduced to $7,000. The deceased was forty-nine years old; she left a husband forty-eight years old, and- two sons, twenty-one and eighteen years of age, respectively, who are entitled to share the verdict. Under the circumstances we feel impelled, by virtue of the power given us of supervising the verdicts of juries as to the amount of damages, to grant a new trial,, unless the plaintiff stipulates to reduce the verdict to $7,000.

We are, therefore, of opinion that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the verdict to $7,000, in which case the judgment be so modified and as so modified be affirmed, without costs of this appeal to either party.

Spring and Latjghlin, JJ., concurred; Adams, P. J., concurred . in opinion, except as to the reduction- of damages ; McLennan, J., dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to- abide event, unless the respondent stipulates to reduce the recovery to $7,000, in which event the judgment is modified accordingly, and as thus modified affirmed, without costs.  