
    SUPREME COURT.
    Philip Hackford, administrator, &c., agt. The New York Central and Hudson River Railroad Company.
    
      Fourth Department, General Term.
    
    
      Submitted, September Term, 1871.
    
      Decided, November Term, 1871.
    To an action against a railroad company for causing death from negligence '; it appeared from the plaintiff’s testimony, that the day was very stormy—wind high, blowing hard and snow falling very fast, which made it difficult to see a train of cars at the place where the highway crossed the railroad, more than six or eight rods distant; that just before the deceased attempted to cross the track with his horses and wagon, a carman with a load crossed the track, and there were other terms approaching the track behind that of the deceased.
    The drivers of other teams stopped, seeing the approaching engine, and cried t% whoa” to the deceased just before he got on the track; the deceased did not regard it but drove on and was instantly struck and killed.
    The witnesses testified that as the engine was approaching the track the bell was not rung nor was the whistle blown; the train was running at the speed of about 20 miles an hour, and there was no sign indicating the crossing. The railroad track was higher than the laud on either side, and higher than the highway. Near the crossing (in fair weather) a train could be seen for a distance of 1400 feet, in one direction, and an eighth of a mile in the other.
    The plaintiff was non-suited at the circuit, on the ground that the deceased was himself guilty of negligence:
    
      JETeld, by the general term, on appeal, that the court committed an error in rerasing to submit the question of concurring negligence of the deceased to the jury. Had the day been a fair one so that there was nothing to prevent a person from seeing and hearing an approaching train, the deceased would have been chargeable with the grossest negligence.
    On a trial of this kind, the plaintiff is not bound to disprove affirmatively his own negligence. But where on the trial there is evidence of negligence on the part of the plaintiff, whether it comes from plaintiff’s or defendants’ witnesses, the plaintiff must overcome it, in order to entitle himself to recover. In this way, and in this way only is the plaintiff bound to disprove his own negligence.
    
      Before Mullin, P. J., Johnson and Talcott, JJ.
    
    Appeal from a judgment of nonsuit at the circuit.
    
      Lyman & James, for plaintiff.
    
    This action was commenced in 1870, under the statute to recover damages for the injury caused the decedent by the defendant, December 18th, 1869, at the Genessee street crossing in the village of Geddes, Onondaga county, from which he died December 19th, 1869.
    The cause came on to be tried at a circuit held at Syracuse, February 27, 1871, before Hon. Henry A. Foster, Justice, and a jury.
    At the close of the plaintiff’s testimony and on motion of counsel for the defendant the court nonsuited the plaintiff ; to which ruling plaintiff’s counsel duly excepted, thereupon the court directed an order to be entered herein that • plaintiff have sixty days to make and serve case and exceptions, and that defendant have the same time to prepare and serve amendments thereto, and in the mean time all proceed-, ings to be stayed and the case heard in the first instance at general term.
    Decedent lived about fifteen miles from Syracuse, was forty-four years old, a native of England; and had been in this country about three years, and was a fanner; bad a wife, two brothers, no children, was in good health, a sober man, and the injury occurred to decedent December 18, 1869, at Genesee street crossing, about one mile and a half west of Syracuse; decedent resided south of the railroad, and in going to Syracuse- would pass south of the railroad until he reached Geddes; he left Syracuse for home on the afternoon of December 18, 1869, and had a team and wagon, he approached the crossing on a walk ; there were three teams at the crossing at the time, .one was stopped and the other passed by Hackfork on to the railroad ahead of him, the man who passed him at the railroad says he did so on a walk ; was about ten feet ahead of decedent when he went on to the track, and passed him on the right, and was four or five feet from the east track on which the train was running when decedent was struck, no bell was rung on the locomotive or whistle blown; the sign board 'which had been erected and kept up there for a great many years, was down, and was replaced immediately after the accident; no flagman there, id had been snowing some all day ; at the time of the accident a terrible snow storm prevailed, and it was impossible to see but a short distance; the railroad crossing was covered with three or four inches of fresh snow, and the snow on the track caused the train to run quite still.
    There is no evidence to show that decedent ever crossed the railroad at this point before, and the most usual and direct route from his place of residence to the city of Syracuse was, by way of Onondaga Hill, and his neighbor, Mr. Woodford, who was in the city on the day of the accident, came and returned by the latter route; the train was going west, leaving tlie city ; was running at the rate of twenty miles an hour; Genesee street is a main road leading to the city, and upon which there is a very large amount of travel; three railroad tracks cross the street at this point, the direct road to Rochester and the Syracuse and Oswego road; the railroad approaches the street at this point at an acute angle of about three degrees; trains are passing this point very often ; the train struck decedent’s horses ; threw him out of his wagon through the fence, his head striking a board close to a post breaking it off, causing injuries from which he died December 19, 1869.
    The exceptions are:
    3 st. The offer by the plaintiff to show by the witness Allen, the number of accidents he had known at that crossing since he had lived in Geddes.
    
      2d. The offer on the part of plaintiff’s counsel to show by Mr. Smith, the village clerk of Geddes. that there was 'a by-law of that village passed by the board of trustees, prohibiting trains running through that village faster than ten miles an hour, and that notice thereof had beeen served on the defendant.
    
      
      3d. Plaintiff’s counsel excepts to the decision of the court nonsuiting the plaintiff.
    
      4th. Plaintiff’s counsel excepts to. the refusal of the court to allow the case to go to the jury.
    I. The evidence offered as to the number of accidents at this crossing was competent and should have been admitted.
    
      First. It was admissible .as tending to show that place to be a dangerous crossing, and the necessity of great precautions being taken by the defendant.
    
      Second. It was competent evidence bearing on the question of negligence as involved in this case. Suppose that the plaintiff had been able to show that one person on an average was killed there by the defendant daily, or that one hundred accidents involving the destruction of life and property, had happened at that point within one week, would not such proof have been competent as tending to show these two propositions:
    1st. That this accident was caused by defendant’s negligence.
    
      2d. That it was not caused by the negligence of deceased. Of course, the evidence would not be conclusive on either point, but we submit it had a bearing upon both, and the plaintiff should have been allowed to show all he could on this point to go in with the other facts of the case, and to be considered with them.
    II. The evidence offered to show that there was a by-law of the village of Gfeddes prohibiting trains running through that place -faster than ten miles an hour, and that notice thereof had been served on the defendant, was competent and should have been allowed. The court excluded the evidence on the ground that it was immaterial.
    
      First Here is a distinct offer to show that the defendant deliberately violated a village ordinance duly passed by a body having authority. The court decided it on the ground that it was immaterial, and not on the ground that it was passed without authority. It is material. We are aware that the contrary doctrine was held in the case of Brown agt. State Line RR. Co. (22 N. Y., 191), but by a divided court, Dsifio, Seldon and Clerke, JJ., dissenting. The doctrine of that case has been severely criticised in this state (Jetter agt. N. Y. & H. R.R. Co., 2 Keyes, 154, 162 ; Williams agt. O’Keefe, 9 Bosw., 536 ; Schu. & Red. on Neg., § 484, 10 Cush. 562; 2 Cush., 539), and is not followed in any other state.
    
      Second. Why was it material ?
    1st. Because negligence arid what constitutes negligence is to be judged from, and viewed in the light of, all the surrounding circumstances of each particular case.
    2d. The act of the defendant in deliberately violating a village ordinance, passed for the protection of the traveler, of which it had due notice, entered into and constituted a part of the negligence of the defendant.
    3d. The plaintiff must show wherein and in what that negligence consisted.
    
      Third. The defendant is bound in law to observe the laws and regulations passed by the proper authorities for ttie protection of the traveler, regulating the manner and speed of running his trains..
    1st. Defendant’s disregarding the village ordinance passed to regulate the speed of trains and for the safety of the passenger, was one of the elements constituting defendant’s negligence, and was a part of the evidence by which plaintiff attempted to show the degree of negligence and in what it consisted; and that the railroad company wilfully and negligently disregarded a duty it was bound to perform. But says the court, “ I do not think a by-law of a village could make it negligence per se against the railroad company, especially in favor of a person who was not a resident of the village, but only a traveler through there.” Granted. But if it did not make it negligence “per se,” was it not one of the facts of the case bearing upon the question of negligence?
    It is riot necessary, to the admission of evidence, that each distinct fact offered to be shown should show negligence u per se.”
    
    It is not in truth necessary, that all the facts put together should show presumptive negligence; all the plaintiff is required to show is a prima facie case of negligence on the part of the defendant, and an omission to perform a duty imposed by statute is prima facie negligence (St. Louis, J. & C. R.R. Co. agt. Terhune, 50 Ill., 151).
    2d. Nor is a by-law passed by the village anthorities for the protection of persons alone residing within its boundaries, but it is for the protection of the public at large, and applies to all alike. Suppose a person should come into the state from Pennsylvania, and should receive an injury at a railroad crossing under like circumstance attending inat of Hackford, and bringing an action against the company for the injuries received, his counsel should attempt to show failure on the part of the defendant to comply with the statutory regulations as to ringing the bell and blowing the whistle, and defendant’ counsel should /also an objection to this evidence, could it be said, that because the plaintiff was not a resident of this state, the statute did not apply to him Í that as to him he had no rights under the statute which the company was bound to respect ? dnd that the objection must be sustained ? If the former is a good objection, why would not the latter be equally as valid ?
    3d. The third exception taken by the plaintiif is to the ruling of the court nonsuiting the plaintiff.
    The motion for a nonsuit was made at the close of the plaintiff’s testimony. The motion for nonsuit was grounded on the assumption of the fact that there was not sufficient evidence to go to the jury.
    The first question that arises upon this exception is the sufficiency of the evidence.
    
      First. It is conceded on the trial of this cause that the decedent died from the effects of the injury inflicted by the defendant.
    
      We have given: (1.) injury ; (2.) state of facts attending the injury ; (3.) death, and to be deduced from this, is the evidence sufficient to go to the jury.
    1st. The court says, “It seems to me there is not sufficient evidence to go to the jury.
    
      (a.) The court in passing upon the sufficiency of the evidence directly invaded the province of the jury. It is an elementary principle of law that whether there is any evidence is a question for the judge, but whether there is sufficient evidence is a question for the jury (Phillips on Evi., 3d Am. Ed., 15 marg. pag.; Phillips on Evi., 4th Am. Ed., by Edwards, p. 3; Wells agt. Tucker, 3 Binney, 370-2-3.)
    (&.) Sufficiency cannot in the nature of things be subject to legal definite control (Betts agt. Jackson, 6 Wend., 204; 1 Stark, Ev., 399).
    When the court takes upon itself the right to pass upon the sufficiency of the evidence, it assumes a dangerous prerogative and directly invades the province of the jury. If courts are to decide upon the sufficiency of the evidence, of what use is a jury? how and in what way are a person’s rights to be determined by a trial before his peers.
    
      Second. The evidence in this case is to be viewed most favorably to the decedent, and the defendant must concede every fact which has been proved against him, and upon appeal the plaintiff is entitled to have every doubtful fact found in his favor (Colgrove agt. N. Y. & N. H. & H. R.R. Cos. 20 N. Y., 494; Church agt. N. Y. Cen. R.R. Co., 3 Trans. Cas. ; Hart agt. Erie R.R. Co., 3 Albany L. J., 312).
    1st. In determining the propriety of a nonsuit, we are legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove (Ernst agt. H. R.R. Co., 25 N. Y., 25; S. C., Hunt, J., 42; 20 N. Y. 492; 3 Barb., 110).
    2d. When the evidence is conflicting or questions of credibility are involved, the case must be very clear indeed, in favor of the defendant to justify the court in taking the cause away from the jury (Hart agt. Erie R.R. Co., 3 Alb. L. J., 312).
    3d. Even where there is no conflict of evidence, it does not follow, necessarily, that the court is to decide the issue (Ernst agt. H. R. R. Co. 35 N Y., 47; Ireland agt. Os. R.R. Co., 13 N. Y., 533; Oldfield agt. N. Y. & H. R.R. Co., 14 N. Y., 310).
    
      (a.) Negligence is generally deduced from different circumstances attending the injury and more or less definitely proved and clearly established, and seldom susceptible of positive proof that decedent was free from contributory negligence. The same principle may be applied to this as in case of a demurrer to evidence, and tEien any inference against the demurrant which the jury might, with the slightest degree of propriety, make from the evidence is to be conceded (Cow. & Hill's notes, part 2, 3d ed., 785 ; Colgrove agt. N. H. & H. R.R. Co., 20 N. Y., 492 ; Betts agt. Jackson, 6 Wend., 203).
    IY. The fourth exception is to the refusal of the court to allow the case to go to the jury.
    
      First. The question touching the negligence of the defendant was one clearly of fact for the jury. The defendant, through different and independent agencies, was guilty of negligence; (1.) in not ringing the bell or blowing the whistle as prescribed by the statute; (2.) neglecting the customary sign or signal, 11 railroad erasing, look out for the cars (3.) running at a dangerous rate of speed without" signals of its approach.
    lsi. As to the signals by bell or whistle. The duty of the railroad company as to ringing the bell and blowing the whistle at places where the same shall cross any traveled public road is prescribed by statute (2 R. S., 5th ed. 688, § 50).
    
      (a.) The object of the statute was protection to the.traveler using the highway (Ernst agt. Hudson R.R. Co., 35 N. Y., 28; Hart agt. Erie R.R. Co., 3 Alb. L. J., 312; 3 Kerr, 82; 32 Barb., 163).
    
      (6.) As between the traveler using the public highway and the railroad company, the former has the right to rely on tj£ latter performing the act prescribed by statute; and it is not carelessness in him to assume that the company will'obey the positive mandates of the'law (29 N. Y. 387; 35 N. Y., 28 35, 48; Hart agt. Erie R.R. Co., 3 Alb. L. J., 314; Jetter agt. N. Y. C. R.R. Co., 2 Keyes, 154).
    
      2d. Omitting the customary sign, “ railroad crossing, look out for the cars.” It was proved on the trial of this cause that, for a great many years, the defendant had kept up a signboard at this crossing, as prescribed by the statute, and that it was not up at the time of the accident. It was claimed by defendant’s counsel, on the trial, that the law did not require the company to erect and maintain a signboard at this crossing ; yet it is shown that the defendant, on the Monday following the accident, replaced the signboard that was down.
    (it.) This'high measure of duty on the part of the railroad company, the statute prescribing notices by signboards at road or street crossings, * * has not relaxed in any degree. As a rule of duty, it stands as inflexible, founded in common law and the plainest right as if there were no such statute (Grippin agt. N. Y. C. R.R., 40 N. Y., 42).
    
      (b.) Even if there was no law or regulation requiring the defendant to keep and maintain a signboard erected a.t this crossing, the, company, by keeping one erected there for .many, years, • had made a law unto. themselves and were as much bound to observe that law as if it were a statutory mandate, and omitting to do so was negligence (Ernst agt. Hudson R. R.R. Co., 39 N. Y., 67.)
    
      3d. The train approached the crossing at a rapid rate of speed and without any signals of any kind.
    The omission of the customary signals was an assurance, by the company to the decedent, that no train was approaching within a quarter of a mile of the crossing. On that he was entitled to rely, and to the defendant he owed no further duty. He was not bound to be on the lookout for danger when assured by the company that the crossing was. safe (Beisiegel agt. N. Y. C. R.R. Co., 34 N. Y., 622 ; Hart agt. Erie R.R. Co., 3 Alb. L. J., 314; Phil. & Trent. R.R. Co. agt. Hogan ct al. 47 Penn., 244; Great West. R.R. Co. agt. Geddis, 33 Ill., 304; 35 N. Y., 35; 2 Keyes, 154).
    («.) The evidence shows gross culpable negligénce on the part of the railroad company. It had omitted in every particular to give warning of the approaching train ; had openly violated the statute made to warn the traveler of approaching danger, and, as against a wrongdoer who openly defies a public statute passed for the protection of human life, nothing short of culpable negligence, on the part of the decedent, which contributed to the injury, will debar his widow and next of kin from a right to recover (22 N. Y. 215 ; 1 Denio, 100 ; 35 N. Y., 26, 35, 36 ; Hart agt. Erie R.R. Co., 3 Alb. L. J., 312).
    
      Second. What is the rule of law governing this class of eases. Í
    
    
      1st. In determining whether the failure of the decedent to discover the approaching train, is attributable to his carelessness, we must take into consideration all the circumstances surrounding the transaction. An act or omission under which one state of facts would be clearly negligent, under other circumstances would be excusable, and no rule of universal application can be prescribed, as every case must mainly depend upon its own circumstances and be determined accordingly (Hart agt. Erie R.R. Co., 3 Alb. L. J., 314 ; Ernst agt. Erie R.R. Co., 39 N. Y., 65 ; North Pa. R.R. Co. agt. Hilman, 49 Pa. 60; Fordham agt. Brighton R.R. Co., 4 Law R., 617, Court Com. Pleas, decided June, 1869.
    
      2d. The want of caution which constitutes negligence must in any given case depend upon the circumstances under which the plaintiff was placed at the time (Beisiegel agt. N. Y. C. R.R., 30 N. Y., 625).
    
      3d. The reasonable care and prudence required of the parties, is governed by time, place and circumstances of danger (Grippen agt. N. Y. C. R.R., 40 N. Y., 42).
    4ÍÁ. That mere negligence on his part will not defeat the plaintiff’s right to recover unless it be such that but for that negligence the misfortune could not have happened, or if the defendant might, by the exercise of care on his part, have avoided toe consequences of the neglect or carelessless of the plaintiff (Tuff agt. Warman, 5 C. B. N. S. App., 585; 27 L. J., (C. P.,) 322 ; Fordham agt. Brighton R.R. Co., supra; 49 Ill., 572).
    
      (a.) It is an elementary principóle of law that what constitutes negligence is a pure question of fact for the jury to decide (Ang. on Car., § 7, 16, &c.; Story on Bail., § 11; Greenleaf on Ev., § 48; 35 N. Y., 46, Hunt, J.)
    
    1st. Upon an examination of all the cases bearing upon the subject, no rule of law can be deduced applicable to all cases oí negligence and legally defining what under all circumstances shall constitute negligence in any given case.
    
      (a.) The rule laid down in Havens agt. Erie R.R. Co., (41 N. Y., 296), decided at the December term, 1869, was by a divided court, Hunt, Ch. J., and Lott, J., dissenting, and Woodruff, J., taking no part. The case of Beisiegel agt. N. Y. C. R.R. Co., 40 N. Y., 9), decided March term, 1869, was by a divided court; Murray and Daniels, JJ., for reversal, on tlie ground stated in the opinion of Grover, J.; Woodruff, J., for reversal, on the ground stated in his opinion in Grippen Case, (Id.); James, J., on the ground that defendant’s carelessness and negligence contributed to the injury; Hunt, Ch. J., and Mason, J., for affirmance; Lott, J., not voting. In the case of Grippen agt. N. Y. C. R.R. (40 N. Y., 35), was by a divided court; Grover, James and Daniels, JJ., for reversal, on the ground stated in the opinion of Woodruff, J.; Mason and Murray, JJ., on the ground of error stated in the charge as to ringing the bell; Hunt, Ch. J., for affirmance; Lott, J., not voting. The case of Gonzales agt. N. Y. & H. R.R. (38 N. Y., 440), has been expressly overruled by the same court when again before the court of appeals (39 How., 407). The case of Ernst agt. Hudson R. R.R. Co. (24 How., 97), the doctrine of “ taking the precaution of looking both ways upon the track,” was first distinctly enunciated, but by a divided court; Sutherland, J., writing a dissenting opinion which is reported in 32 How., 265. That case has been reversed in 35 N. Y., 9; 39 N.Y., 61, and the plaintiff recovered. The ease of Steves agt. O. & S. R.R. Co., (18 N. Y., 422), was by a divided' court; Denio, Selden and Pratt, JJ., dissented, holding that the object of the statute requiring the ringing the bell, or sounding the whistle, was to put persons negligently aproaching a crossing upon their guard; and that the question whether the negligence of plaintiff was such if the proper signals had been given he would still have been injured, was one which should have been left to-the jury.
    
      (b.) Judge Foster, ip the case of Gonzales agt. H. R. R. Co., (39 How., 412,), in commenting upon the opinion of the court, when the same case was first before it for consideration, says: But if the court intended, under any and all circumstances, it was such negligence for a per.son to cross a railroad track without taking the precaution to look up and down the track, the holding is in conflict with several decisions of this court. * * * I do not think the court intended to lay down any such rule ; and at page 423, same case continues: The much vexed case of Ernst agt. H. R. R.R. Co. (39 N. Y., 61), seems to have decided, in a case between the railroad and a stranger attempting to cross the road, that no inferences of fact are to be entertained against him as a matter of law by this court—that this court could not assume as a matter of law that he did not look.
    (e.) The last case in the court of appeals, involving this question, is that of Hart agt. Erie R.R. Co., reported in the Alb. L. J., Vol. 3, 312), and decided at the March term, 1870. That case on a review of all the authorities lays down the law applicable to this case as hereinafter stated. And in the case of Baxter agt. Troy & Boston R.R. Co., recently-decided in the court of appeals and not reported, it affirmatively appeared that the plaintiff did not look for the train. Judge G-bovek, in the case says: “ All that the law requires is a reasonable use of the senses.”
    
      (d.) The doctrine, as enunciated by. E. Darwin Smith, J., in 24 How., 97, and sought to be established in kindred cases of this nature, is in conflict with many cases in this state, and is virtually overruled in the case of Hart agt. Erie R.R. Co., (supra,, and the latter case has so explained and modified the case of Wilcox agt. R. W. & Og. R.R. Co., (39 N. Y., 358), that it cannot be said that the last case can be applied to the one at bar.
    
      2d. The doctrine in Ernst agt. Hudson R. R.R. Co., (24 How., 97), is in conflict with the decisions of this country and of England, and should not be followed (Hart agt. Erie RR. Co., 3 Alb. L. J., 312 ; Ernst agt. Hudson R. R.R. Co., 35 N. Y., 20, 27 ; 39 N. Y., 64-5 ; Renwick agt. N. Y. C. R.R. C., 36 N. Y., 192; Mackay agt. N. Y. C. R.R. Co., 35 N. Y., 75; Colgrove agt. N. H. & H. R.R. Co’s., 20 N. Y., 492; Keller agt. N. Y. C. R.R. Co., 26 How., 177; Brown agt. N. Y. C. R.R. Co., 34 N. Y., 40; Cook agt. N. Y. C. R.R. Co., 3 Trans. Appls. Cases, 8; S. C., 3 Keyes, 479; Mallory agt. Tioga R.R. Co., 1 Trans. Appls. Cases, 206; Dunham agt. Troy U. RR. Co., 3 Trans. Appls. Cases, 67 ; Sher. & Redfield on Negligence, 23. § 25; Walkiel agt. Sixth Av. R.R Co., 5 Trans. Appls. Cases 217 ; North Pa. R. Co. agt. Hilman, 49 Pa., 60; Penn. R.R. Co. agt. Ogier, 35 Pa., 60, 72; Isbell agt. N. Y. & N. H. R.R., 27 Conn., 393 ; Beers agt. H. R. R., 19 Conn., 566 ; Park agt. O’Brien, 23. Conn., 347 ; Briggs agt. Taylor, 28 Vt., 183; Vinton agt. Schwab, 32 Vt., 612 ; Langhoff agt. Mil. & P. Du. L. R., 19 Wis., 497; G. W. R. Co. agt. Geddis, 33 Ill., 304; C. & A. R.R. Co. agt Grelzner, 46 Ill., 75 ; New Jersey Ex. Co. agt. Nichols, 33 N. J., 439; Balt. & Ohio R.R. Co., agt. Tranier, 33 Mary., 542 ; North, Cent. R.R. C. agt. 
      Price, 29 Mary., 421; 18 Ga., 686 ; 13 Ga., 87; 17 Ga., 593; Bradley agt. B. & M. R.R. Co., 2 Cush. 540; Linfield, agt. Old C. R.R., 10 Cush., 562; Stapely agt. The London & S. C. R. W. Co., 1 Law Rep. Court of Ex., 211; Stubley agt. London & N. W. R.R. Co., 13, same vol. ; Bilbee agt. The Lond. B. & South Coast R.R. Co., 18 Com. B. R.; N. S., 583; Fordham agt. Brighton R.R. Co., 4 Law Rep. 617, Ct. Com. Pls., decided June Term, 1869).
    
      3d. In the light of all the cases which we have been able to consult upon this question, we think the court of appeals, in the case of Hart agt. The Erie R.R. Co., (supra), has deduced rules sufficiently stringent as against the decedent, applicable to this class of cases.
    The court therein say :
    ] st. A traveler on a public thoroughfare crossing a railroad has a right, on approaching a crossing, to expect that the usual warning by bell, whistle or flagman will be given of the approach of a train!
    
      2d. He is not bound to assume that the railroad company will violate the law by omitting such precaution. He has a perfect right to rely upon the assumption that they will obey the law, in determining the degree of caution which he should exercise in approaching the crossing.
    
      3d. While the doctrine of concurring negligence should be recognized and fairly expressed by the courts by requiring persons traveling upon the public highway, in approaching a railroad crossing, to reasonably exercise the senses of hearing and seeing, they should not, in a case where there is a failure on the part of the railroad company to give the warning which the law requires, and when there is no positive proof of omission of duty on the part of the person injured, indulge inferences unfavorable to such person.
    4th. In determining whether the failure of the deceased to discover an approaching train is attributable to his own carelessness, we must take into account all the' circumstances which surrounded the transaction. Hence, no rule of universal application can be prescribed, as every case must mainly depend upon its own circumstances and be determined accordingly.
    
      Third. Testing the case at bar by the rules above stated, and in the light of cases cited, supra, to what conclusions do we arrive 1
    
    
      1st. The party against whom a nonsuit is granted is, upon appeal, entitled to have the case construed in the most favorable light possible under the evidence.
    
      2d. The deceased had a right to assume that the railroad, company would obey the law. If he was deceived by the unlawful omission of the signals and the accustomed sign, the wrong is not his but theirs (Porter, 35 N. Y., 35 ; Hart agt. Erie R.R. Co., supra)
    
    
      ad. Where there is such failure on the part of the defendant to give the warnings required by law, there must be positive proof of omission of duty on the part of the person injured, or contributory negligence is not shown.
    
      4tii. The _ court cannot assume negligence on the part of the deceased unless the evidence, in its most favorable aspect to the plaintiff, shows it.
    1. In the case at bar the court assumes two things on granting the motion for nonsuit, (i.) That the deceased knew there was a railroad crossing at the place of the accident, and, (2) That deceased could have seen the tram in time to have avoided the accident, if he had looked.
    In regal'd to the first.assumption, we say :
    (1.) The law in reference to looking up and down the track can only apply to those cases where the deceased knew there was a track to look up and down. This is too plain a statement to need argument. (2.) The evidence on this point was that deceased lived fifteen miles away; was a foreigner ■, had been in this country but three years, and his nearest way to Syracuse was another route.
    His neighbor, Woodford, came and went the other way. There was no evidence that deceased had ever before or from Syracuse that way. Under this state of facts, had the court .the right to assume as matter of law that the deceased knew there was a railroad crossing at that point? Was it not peculiarly within the province of the jury- to pass on that question under the evidence as presented? Bear in mind, also, in this case the court, according to his own statement, assumes it not as a fact established on clear evidence, but on “ strong probabilities.”
    We know no better reply to this than Judge Foster’s own words in the case of Gonzales, (supra, 39 How., 418 and 419): “It is the exclusive province of the jury to determine what are the inferences of fact to be deduced from the testimony, to the same extent that it is to decide the facts when the evidence is conflicting.” and see cases there cited.
    (2.) In regard to the second assumption, in addition to what is said on the other branch of the subject, we say :
    
      1st. The fact that a person just out of a house, with eyes and ears open and free from snow and ice, could see a train six to eight rods, is no evidence that one who had driven two or three miles in a storm, wind blowing, snow driving, and whose face, eyes and ears must have been filled with snow, sleet and ice, could have seen the train in time to avoid the accident. Gregory, who had also J*en out in the storm, says, “ I couldn’t see any further than the horse’s head, not unless I looked pretty sharp, on account of its snowing and blowing so.”
    
      2d. It is also assumed by the court in this case, that decedent did not look, did not use due care and caution. Upon what principle of law can such a proposition be founded ? Upon what legal principle can the court base such an assumption of fact? There is no proof in the case that decedent was guilty of negligence—that he did not use his eyes and ears ; that he did not use that degree of care and caution which a prudent man would do under like circumstances. When the decedent is killed, can you assume as a fact that he did not look 1 The presumption of law is (he having been killed), that he exercised that ordinary care which the law requires, to save himself from harm (Vide Denio’s opinion, 20 N. Y., 68, 74; See opinion by Foster, J., in Gonzales agt. H. R. R.R. Co., 39 How., 423.)
    3d. Not only does the court, assume all the foregoing propositions without evidence; it goes further and holds it to have been the duty of the decedent, who was a stranger, at any rate to the particular location of the railroad) not only to look .both ways,- but also behind him, to see that there was no train following on a road nearly parallel to the one he was traveling.
    Courts nonsuit whe^n the negligence of deceased is shown by the evidence, but this is the first case in our knowledge in which negligence has been presumed by the court when there was no evidence of it.
    
      Fourth. If the railroad company can, with impunity, violate every law passed for the protection of human life, be guilty of the grossest, culpable negligence, disregarding every safeguard made for the protection of the traveler using the public highway crossing the railroad, no matter what may be the circumstances surrounding the case-; if this court, in the case at bar, with all, its surrounding circumstances, before it, the deceased a comparative stranger in the county, residing miles distant, with no evidence that he was ever in the neighborhood of this crossing before, no bell rung or whistle blown, the signboard down, the railroad track covered with three or four inches of freshly fallen snow, completely obscuring the track at the crossing, no flagman there, a dense snowstorm prevailing at the time of the accident, with the wind blowing from the north-west drifting the snow directly into the eyes of the decedent, his team approaching the crossing upon a walk; Gregory, the cartman, 'turning out to the right and passing Hackford eight or ten feet east of the crossing with his team on a walk, and passing over but a few feet ahead of him ; shall hold, as a matter of law, that the plaintiff cannot recover, then under what state of facts can any person ever hope to maintain an action against a railroad corporation for an injury received at a public highway. If the court shall hold in this case, that because it is not shown by positive proof that the decedent did look up and down the railroad track before he attempted to cross, with this terrible snow-storm prevailing at the time and when he could not have seen the train in time to have avoided the collision, that the plaintiff cannot recover then I ask: under what state of facts can a person ever hope to recover an action of this kind 1 You directly encourage the railroad company and its servants to a reckless disregard of those laws passed for the protection of human life, you say to him, run your ponderous trains through cities and villages and across thickly crowded thoroughfares; and no matter if you are guilty of culpable negligence and the unsuspecting traveler is crushed to death,'his widow or next of kin cannot recover. Of what avail will it be to pass those laws and regulations if they are to become, by the sanction of this court, a dead letter, and which á powerful corporation is allowed to disregard with impunity, jeopardizing life and limb %
    
    
      Fifth. I think a little reflection will satisfy the members of this court that the unsettled state of the law in this state, upon questions of this kind, is attributable to the courts attempting to decide questions of fact by legal rules, instead of allowing that question tobe passed upon by a jury; and Judge Porter, at the close of his exhaustive opinion (35 N. Y., 41),"has \fell remarked that “the correctness of judicial opinions in mere questions of fact may well be distrusted when we find them confessedly opposed to the common sense of mankind.”
    As we read the reported cases upon this question, how forcibly are we reminded of that salutary maxim: “ Ad quesiionem facti, non respondent judices; ad questionem legis, non respondent jur atores^
    
    
      Ladlg. It is submitted that, upon the facts of this case, it could not be decided, as a matter of law, that he was negligent, but that it was for the jury, under all circumstances, to say whether decedent was guilty of negligence contributing to produce the injury he received; and that in determining whether the decision at the circuit should be sustained, it is, a fair test to inquire whether, in case the cause had been submitted to the jury and a verdict rendered in favor of the plaintiff, it should have been set aside as against evidence. If a verdict had been rendered in favor of plaintiff, could it be said, in the language of Judge Grovér, in Cathran agt. Collins (29 How., 155), “ That the case was so flagrant as to show passion, prejudice, or inattention to their duty, .on the part of the j ury” ?
    Pratt, Mitchell & Brown, for defendant.
    
    The plaintiff’s intestate, on the 18th day of December, 1869, came with his team, from his home in the town of Marcellus, to the city of Syracuse, with a load of potatoes, and upon his return, as he was crossing the track of the defendants, near the village of Geddes, his horses were struck by the locomotive of a train going west, and he was thrown out of his wagon and killed.
    The track, for several hundred feet on both sides of the crossing, was in plain sight of the highway, for nearly a half mile east of the track. The intestate passed one or two teams, near the track, that fyad stopped for the train to pass; a man stepped before' his horses and tried to stop him, but he recklessly drove on, giving no heed to the warning, until his horses were struck.-
    Witnesses, as usual, testified that they did not hear the bell ring, or the whistle sound; and it was proved that the usual sign, “Look out for the cars when the bell rings,” had been taken down in repairing the canal bridge near by, and had not been replaced. It was also proved that it was snowing at the time of the accident.
    
      Upon this evidence the plaintiff was nonsuited, on the ground that the proof did not show that the'intestate was free from negligence, on his part, contributing to the injury.
    I. To sustain the' action in this case, it was incumbent upon the plaintiff to show that the death of his intestate was occasioned by the negligence of the defendant, and that the intestate was free from any negligence on his part. The plaintiff holds the affirmativs of both propositions.
    
      1st. Although, under certain circumstances, a presumption may arise that the injured party exercised due care, yet upon the broad issue, the plaintiff has the affirmative.
    
      2d. Thus, when a person is injured by a train crossing the highway, he must show that he exercised due care on his part.
    
      3d. If, therefore, the highway and track are so situated that a passing train may be seen from the highway by a person approaching the track, in time, to avoid a collision, he will be charged with negligence if he does not avoid it.
    
      4th. It is now the settled law that he cannot depend upon hearing the bell or whistle, but due care requires him to look and see if there is not an approaching train, and the law holds him negligent if he neglects thus to look. No degree of negligence on the part of the company will excuse him (Baxter agt. The Troy & Boston R.R. Co., 41 N. Y., 502; Grippen agt. The N. Y. C. R.R. Co., 40 N. Y., 34; Ernst agt. Hudson R. R.R. Co., 39 N. Y., 61; Gorton agt. N. Y. C. R.R. Co., decided June Term, 1871, 4 Alby. L. J., Sept. 2, 95).
    II. Under the law as thus settled, the court was clearly right in nonsuiting the plaintiff upon the trial.
    
      1st. The evidence showed that a train of cars on the track would be in plain sight of a man traveling on the road for a long distance before reaching the track.
    
      2d. The suggestion that the show storm, was so severe-that a train could not be seen, is not supported by the proof.
    
      (a.) Gregory, it is true testified that he could not see be-' yond his horse’s head, and yet he testified that he saw from the centre of the bridge, the horses and man after the collision, a distance from seven to twelve rods.
    (6.) Allen' was six rods east from the crossing, and saw. the train five or six rods south. He seems to have had no trouble in seeing through the storm.
    (c.) Ready was seven or eight rods offj and had no difficulty in seeing.
    
      (d.) The drivers of the other' teams must have seen or heard the train, or they would not have stopped to let it pass.
    
      .3d. Nor is there anything in the suggestion that the de-' ceased did not know that the track crossed the road at that point.
    
      (a.) He had resided in Marcellus two or three years, had frequently been to Syracuse, and the presumption is that he was acquainted with the road.
    (&.) Besides upon this point the burden of proof was on the plaintiff. The deceased was apparently negligent. The burden was, therefore, upon the plaintiff to explain his conduct.
    
      4th. Again: He was warned of the danger, and paid no heed to the warning, showing not only negligence, but criminal recklessness.
    
      (a.) He must have seen the other teams that had stopped to let the train pass.
    (&.) McDonald put himself in front of his team and tried to stop him, but he recklessly drove on.
    (c.) All the evidence shows that he saw the train, but supposed he could get by before it should reach the crossing. At all events he took the chances.
    HI. No valid exceptions were taken to the rulings of the court in the admission or rejection of evidence.
    lsí. The exception at folio 15 of the case is not well taken. The way a man would naturally look on approaching the ‘crossing, is not a question of skill or science. The witness, therefore, could have no better knowledge than the jury of that question.
    
      2d. The exclusion of evidence of other accidents at that crossing, was clearly -right. The issue was as to the negligence of the defendant upon this occasion, and not upon other occasions.
    
      3d. The ordinance of the village regulating the speed of trains was entirely immaterial.
    
      (a.) There was no proof that the speed was unusual, and if there had been, the ordinance could have had no influence upon that question.
    
      (b.) Nor could it legally affect the question of the negligence of either plaintiff or defendant (Brown agt. Buffalo & State Line R.R. Co. 22 N. Y., 191).
    IV. A new trial should therefore be denied, with costs.
   By the court, Mullin, P. J.

—The plaintiff, as administrator, brought this action to recover damages for the killing of William Hackford at G-eddes, in the county of Onondaga, in December, 1869, by reason of the negligence of the employees of defendant. The deceased was driving his team from the city of Syracuse to his residence, some fifteen miles from the city. It was a very stormy day, snow was falling, and the wind was blowing very hard.

The street, along which the deceased was driving, runs east and west, at the railroad crossing, where the accident occurred, and it crosses the track at nearly right angles. The deceased was going west; the engine, by which he was struck, was moving north at about twrenty miles per hour. There was no sign up, indicating that there was a railroad crossing at the place of the accident; the sign that had been up having been removed. A carman, with furniture in his cart, crossed the track just before the deceased attempted to cross; there were other teams approaching the track from the east.

The drivers of the other teams stopped, seeing the approa'ching engine and cried “whoa” to the deceased just before he got on to the track; the deceased did not regard it, but drove on and was instantly struck and killed.

On the trial, plaintiff’s witnesses testified to the foregoing facts and, also, that as the engine approached the track, the bell was not rung, nor was the whistle .blown. These omissions of duty, together with the rate of speed and absence of a sign indicating the crossing, constituted the negligence on the part of the defendant.

The defenses set up in answer were: first, a general denial ; and, second, concurring negligence on the part of the intestate.

The evidence of negligence on the part of the intestate was:

1 st. That the railroad track could be seen, by a person going from Syracuse, towards the crossing, for a distance of some half a mile, except where houses intervened. The track was higher than the land on either side and higher than the street. • Near the crossing a train could be seen for a distance of fourteen hundred feet in one direction, and an eighth of a mile in the other.

■ Henry Gf. Allen testified that he lived at Gfeddes, in a house on the north side of Gfenessee Street, some six or ten rods from the crossing. He was in the street at the time of the accident, and saw the train approaching some six or eight rods from the crossing.

Michael Ready testified that he lived in Gfeddes, on the northwest side of Gfenessee Street, and east of the railroad. At the time of the accident he was standing seven or eight rods from the crossing. Heard a man shouting whoa”; looked up and saw the train passing, and just about the same time saw smoke stack of the engine, and then the collision occurred almost instantly, not a half a second after he heard the cry of “ whoa,” The intestate, with his team, passed along pretty swift. "When he first saw the intestate, he was within a rod of the track, and when he saw the engine the intestate was going right on to the track.

Justin M. Woodford testified that the storm was very severe; so severe that you could not see many rods.

Henry D. Gregory was the carman who crossed the track ahead of deceased, and he testified that before he crossed he did not hear or see the cars. He could not see, by reason of the storm, any further than the horses’ heads, not unless he looked pretty sharp.

Upon this evidence the plaintiff" was nonsuited, on the grounds that the deceased was himself guilty of negligence.

The plaintiff’s counsel asked the court to submit the question of concurring negligence to the jury.

The request was refused on the ground that there was not sufficient evidence to go to the jury; aiid to this ruling plaintiff’s counsel excepted, as he did to the granting of the non-suit.

The court committed a grave error in refusing to submit the question of concurring negligence of the deceased to the jury. Had the day been a fair one, so that there was nothing to prevent a person from seeing and hearing an approaching train, I should be of opinion that the deceased would have been chargeable with the grossest negligence. The day was a very stormy one; the wind was high and snow falling in large quantities, and of course it was carried by the wind against the faces of those travelling against the wind. From what point of the compass the wind was blowing on the day of the accident does not appear in the case.

But it does appear that the man who crossed the track just ahead of the deceased could not see further than his horse’s head, unless he looked pretty sharp.

There is no evidence that a person approaching the track could see an approaching train at a greater distance than six to eight rods from the crossing.

If the train was moving twenty miles per hour, it would move the distance of six rods in a little over a second. If then we could assume that the deceased saw the engine six' rods before it reached the crossing, he had no time to save himself, he must have been. on the track and escape im possible.

If we assume that he did not look for an approaching train, and it would, under ordinary circumstances, be negligence not to look, yet when it is demonstrated that if he had looked, he could .not have escaped injury or death, surely his right to recover of the party whose negligence caused the injury would not be denied him?

Again it was shown that the man who crossed ahead of ■ him, did not hear the approaching train, and by reason of neither seeing or hearing it, nearly lost his own life, must we not assume that the deceased did not hear it, and therefore, his senses failed to apprise him of his danger.

Is it probable that two men rushed recklessly into the jaws of death, having knowledge that death was imminent ?

If we are to indulge in presumptions, is it not the rational one that men use, their senses for their protection when they have reason to suppose that danger is impending.

If upon the evidence given by the plaintiff, the jury could reasonably feel that, by reason of the storm, the deceased could not, in the absence of ringing of the bell, or the blowing of the whistle ascertain the approach of a train in time to escape a collision with it, would not a verdict for the plaintiff have been sustained. That such a state of facta might have been found from the evidence, I entertain no doubt.

It was, therefore, the duty of the court to submit the question to the jury, as to the concurring negligence of the deceased, and because the request to submit it was refused, a new trial must be granted.

The learned judge said, in granting the nonsuit, that the plaintiff had the affirmative of showing by the evidence that he was free from any negligence that contributed to the production of the injury.

This remark cannot be the ground for granting a new trial, if it is erroneous, but it may be taken into consideration in determining the weight the court gave to the evidence of the concurring negligence of deceased, when it refuses to submit the question to the jury.

If the learned judge intended to hold that the plaintiff is bound to allege in a complaint in an action for damages resulting from an injury caused by the negligence of the defendant, and to prove affirmatively on the trial that he (the plaintiff) was not guilty of negligence that contributed to the injury, he was mistaken.

The concurring negligence of the plaintiff is matter of defense, and the. plaintiff'is under no obligation to prove anything to entitle him to recover but the injury, and that it was caused by defendant’s negligence.

No precedent of a common law declaration in case for negligence can be found, I think, in which plaintiff asserts that he was free from negligence, nor any decision that he is bound to make such proof. (See precedents in case for negligence in 2 Ckitty's Pleadings.)

But where, on the trial, there is evidence of negligence on the part of plaintiff, whether it comes from plaintiff’s or defendant’s witnesses, the plaintiff must overcome it, in order to entitle himself to recover. In this way, and in this way only, is the plaintiff bound to disprove his own negligence.

To meet the view of the court, that the plantiff had the burden of proving the absence of negligence, affirmatively, a ■ higher degree of proof was demanded than he was bound to make, and thus wrong was done to the plaintiff.

If, however, the court merely meant to say, the plaintiff’s own evidence shows his negligence, and that it concurred to produce the'injury, he must, therefore, give evidence to rebut the inference of negligence resulting from the evidence he had himself given, he was, doubtless correct. If plaintiff’s witnesses proved defendant’s defense, it was as available as if proved by itself This construction of the charge would hardly be consistent with the proposition that the plaintiff held the affirmative of disproving negligence.

If it had, it mast follow that the law must presume negligence against him, tin the contrary, negligence is never presumed, but must be affirmatively proved. There must be a new trial with costs to abide the event.

Note.—In seems that this case turned on the ground that it was a very stormy day. when the collision aim death took place. For it is admitted that the deceased would have been chargeable with the grossest negligence, had the day been a fair one.

Now should not the deceased have exercised a corresponding degree of care and caution iu crossing the railroad on a stormy day, to what he would have been required on a fair day. Was it not his duty on approaching near the railroad track to stoj?t and if he could not see as far as usual in fair weather, to listen attentively to hear an approaching train, especially so when the action of some of the other teamsters was such as to assure him that a train was near at hand, instead ot rushing on blindly, iu a snow storm, with such evidence before him of danger from a coming train.

This case is somewhat aualagous to that of Ernst agt. Hudson, R. R.R. Co., our views of which are given pretty fully in a Note in 36 How. p. 84. A case where we think eventually, great injustice was done by mulcting the railroad company in a sum of $5.0U0, damages, when it appeared to be a very clear case for a nonsuit.

The theory upon which these railroad collisions occur at a highway crossing, we think to he, generally, an impatience of delay, an aversion to stopping until the danger is past. To be sure, considerate, cautious .and timid people are careful and do not give way to this impatience of restraint, but are willing to allow any reasonable length of time to pass, when necessary, to avoid danger. But take the commonalty of people who drive teams upon public highways, it is different. Such persons get accustomed to railroad as well as to highway travel. A man of this description in crossing a railroad track with his lioises and waggon, would very likely cross in front of an engine so near that the hind wheels of his wagon would barely clear the engine, and after he had got across stop his team for five minutes, and turn around and look at the train, saying to himself, that was a pretty close shave,” when nothing would have induced him to stop two minutes on the other side and let the tr*iu and the danger pass on before him.

In the case of Ernst (supra,) who stopped with his team, at Beerstyners tavern in the village oi Bath, opposite of Albany, a day or two before New Years, . and probably after refreshing the inner man and feeling pretty comfortable, Went out, unhitched his horses, jumped into his sleigh and sat down on the bottom of it, with a shawl around his tace and ears, steered his horses for the ferry boat, which he knew was waiting for him, and neither looked to the right nor left, although he must have seen, and probably heard the three men, one on his right, one on his left, and one directly in front of him, warning him that an engine and cars were.close at hand, and to stop, before crowing the railroad, yet, we have no doubt this principle of impatience of delay or restraint, seduced him tv urge forward his horses, with the hope and expectation that he Wi-uld be able to cross before the engine reached him. In this, however, he was místala n.

It is not that people incline to rush into danger and death in these cases, but the, desire to avoid both, by a course myolviug great risk.

We still adhere to and insist, that the rule promulgated by Judge E. DXitwxs Smith, when the case of J3nisti was first before the court of appeals, is the true, salutary and humane one, to wit, on crossing a raihoad in constant use, the person crossing should look each way upon the tiack To ascertain whether a train of cars is approaching. We are aware that this rule has had -its stubs and thrusts with a zeal worthy of a better cause, but wé think that it abideth still unscathed and unharmed. For it does not require the performance of a duty which the person does not owe to a mismanaged, careless and negligent railroad company; nor has it any reference to the culpability or liability of a railroad company whatever. It has for its object a higher and nobler end—the preservation of human life, which is the highest law of our nature.—Rep.  