
    MARY COLLINS, Appellant v. THE LONG ISLAND RAILROAD COMPANY, Respondent.
    
      Negligence ; contributory and when the joint negligence of the defendant and another party other than the plaintiff.
    
    In this case the controlling question before the court and jury was whether the accident was caused by the negligence of Burke, the driver of the carriage, or the negligence of the railroad company. The negligence of the driver could not be imputed to the plaintiff. From the facts in evidence in the case the jury might have found that the driver and the railroad company were both negligent, but the question of their joint negligence was not sent to or placed before the jury, and the plaintiff did not have the benefit of the finding of the jury whether each was partly negligent, and, therefore, both jointly negligent, and for this reason a new trial was ordered.
    
      Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided May 2, 1892.
    Appeal by plaintiff from judgment entered for defendant on the verdict of a jury, and from an order denying the motion of plaintiff for a new trial upon the judge’s minutes.
    
      Frederick G. Gedney, attorney, and Edward C. James of counsel, for appellant, argued:—
    I. Defendant’s negligence the only issue. It was conceded that the negligence of the driver, if any, could not be imputed to the plaintiff. The law is well settled to that effect, where the driver is not the servant of the plaintiff. Robinson v. Railroad Co., 66 N. Y., 10; Dyer v. Railroad, Co., 71 Ib., 228, 234; Bicknell v. Railroad Co., 120 Ib., 290, 293; Phillips v. Railroad Co., 127 Ib., 560,657; Railroad Co. v. Markins, 14 Lawyers’ Rep. Ann., 281. There was no evidence that the plaintiff was guilty of any contributory negligence. She was inside a closed carriage, powerless to control the driver, or to avoid or escape a collision. Bicknell v. Railroad Co., 120 N. Y., 290, 293. The defendant’s claim was that the collision was wholly due to the negligence of the driver. The plaintiff’s claim was that the defendant’s negligence also contributed. The negligence on the part of the defendant consisted in not giving proper warning by flag, bell, whistle or otherwise of the approaching train, and in stopping the horses upon the track until it was too late to avoid the collision, when, if let alone, they would have got safely over.
    II. Plaintiff not liable for driver’s negligence. Notwithstanding the well-settled rule of law that a plaintiff, inside a closed carriage, is not liable for the driver’s negligence, where the driver is not her servant, and in spite of defendant’s concession, in this case, that any negligence of the driver was not imputable to the plaintiff, the court flatly refused to charge at plaintiff’s request, that the plaintiff was not responsible for the acts or negligence of the driver. To this the plaintiff excepted. This took away the effect of the defendant’s concession made while the case was being summed up. It was equivalent to telling the jury that the negligence of the driver, if any, was imputable to the plaintiff. The plaintiff was entitled to the instruction requested, and its refusal was error.
    III. Defendant’s negligence not excused by driver’s negligence. The court instructed the jury that, in order for the plaintiff to recover, they must be satisfied that the injuries complained of were occasioned by the exclusive negligence of the defendant. The plaintiff duly excepted to this portion of the charge, and requested the court to charge that, if the defendant, or its servants, were guilty of negligence which contributed to cause the accident, then it was no defence to the defendant that the driver was also guilty of negligence. The court refused so to charge, and plaintiff duly excepted. This was a serious error. It ignores the separate liability of several wrong-doers who contribute to a common injury. It does not exonerate the defendant for its share in the catastrophe, that the driver, or any other third party, for whose conduct the plaintiff was not responsible, also helped to bring about the injury. One wrong never excuses another. Robinson v. Railroad Co., 66 N. Y., 10, 13; Ellis v. Railroad Co., 95 Ib., 546, 553 ; Phillips v. Railroad Co., 127 Ib., 657. This charge, in effect, told the jury that if the plaintiff’s injury was only in part due to the defendant’s negligence, the defendant was not liable. On the same principle, if it was only in part due to the driver’s negligence, the driver, or his employer, were not liable. So that, if the two contributed to bring about the injury, there would be no liability, while, if either had done it exclusively, the plaintiff could recover from the exclusive wrong-doer. A proposition so obviously erroneous and absurd does not require argument. Under this charge the jury were bound to find for the defendant, if they concluded that the driver was in any degree negligent. This error entitles the plaintiff to a new trial.
    IV. The defendant’s duty to give warning. The court, at the defendant’s request, instructed the jury that there is no statutory obligation upon the defendants to ring the bell or blow the whistle, or provide a flagman at the crossing. The court so charged, and plaintiff duly excepted. The plaintiff requested the court to charge that it was the duty of the defendant to give timely warning of the approach of its train to the crossing in question, and if it failed to do so, and such failure contributed to produce this accident, the defendant may be held liable. The court refused so to charge, and plaintiff duly excepted. At the time this accident occurred, the statutory requirements as to ringing the locomotive’s bell and blowing the whistle on approaching highway crossings seems to have been repealed. Lewis v. Railroad Co., 123 N. Y., 496. But such repeal simply relieved the defendant of the rule making it negligence per se to omit the statutory signals. It did not do away with its common law duty to use due care in approaching the crossings, and give timely warnings to prévent injury to passers oh the highway. It was long ago decided that it was not enough, in all cases, even that the statutory signals were given. Dyer v. Railroad Co., 71 N. Y., 228, 230-1. In cases where the statutory signals were not required, it was always a question for the jury whether the defendant had exercised due care to give timely warning. Swift v. Railroad Co., 123 N. Y., 645, 649; Austen v. Railroad Co., 39 State Rep., 76. But here the court not only told the jury that the defendant was under no statutory obligation, but refused to instruct them as to the defendant’s common law duty. Under such a charge the jury had the right to infer that the omission of all signals was no longer to be considered negligence. The refusal of the instruction requested entitles the plaintiff to a new trial.
    V. As to the flagman’s stopping the horses. The plaintiff requested the. court to charge, that if the jury found that the flagman stopped the horses upon the track in front of the approaching train, and that the carriage could have passed in safety, except- for the act of the flagman in stopping the horses, then the defendant may be held liable. The court refused so to charge, saying: “ The second proposition I decline to charge upon the ground that I cannot charge in its absolute terms, that the proposition depends upon circumstances and conditions not covered by it.” The plaintiff duly excepted. What “ circumstances and conditions ” the court intended by its remarks it did not explain. The evidence upon the part of the plaintiff was that the flagman grabbed the team after the horses were on the track, and held them fifteen or twenty seconds, notwithstanding the driver’s remonstrances. He then let go, but just too late to avoid the collision, as the locomotive struck the off hind wheel. The evidence on the part of the defendant was that the flagman took the horses’ heads or lines, while they were crossing the tracks. The plaintiff had the right to, have the jury instructed as requested. The request was completely within the evidence on the part of the plaintiff, and was conditioned upon the jury finding that the flagman stopped the horses upon the track in front of the approaching train, and that the carriage could have passed in safety except for the act of the flagman in stopping the horses. It makes no difference how careless the driver was in attempting to cross this railroad track in front of the train, or whether the signals were given by the defendant’s servants, or heard or seen by the ■ driver, if there was time to cross the track in front of this train without a collision, and the successful crossing was prevented by the defendant’s flagman holding the horses upon the track until the collision was inevitable. In such a case, the defendant is responsible to the inmates of the carriage, who were in no way chargeable with the driver’s alleged negligence. The principle upon which such liability depends is clear in reason and in law. If the driver put the plaintiff in a situation of peril, the flagman prevented the opportunity for escape. Except for his reckless interference the driver’s alleged negligence would have been without injury to the plaintiff. It was error to refuse the instruction requested, which entitles plaintiff to a new trial.
    
      E. B. Hinsdale, attorney and of counsel, for respondent, argued:—
    I. The decision of the jury was correct and in accordance with the overwhelming weight of evidence. The plaintiff produced the driver who was injured in the collision and who had the strongest motives possible to shift the responsibility for so gross a piece of negligence from his shoulders. His story is improbable and unreasonable. He admits that he was familiar with the crossing and that he was driving at a fast gait and on to the crossing in broad daylight. To corroborate his version in part, three boys were produced who were fishing in a pond by the side of the track who all admitted that they were not paying very close attention to the accident. The defendant produced eight adults who were in different positions, only one of whom was an employee of the railroad who testified that the driver drove rapidly toward the track, that the flagman was on the crossing while he was a considerable distance from the crossing, signaling to him and calling out to him not to proceed, and that the driver disregarded the warnings and drove rapidly on the crossing just in advance of the train.
    
      The most casual reading of the testimony and examination of the maps and photographs would convince the most prejudiced mind that the verdict of the jury was correct.There is no room for criticism or doubt as to this matter.
    II. Plaintiff’s exceptions to the charge and to the court’s refusals to charge were not well taken. First: The refusal to charge the first request of plaintiff was not error, and the exception to the charge made at request of defendant was not well taken. At the time of this accident, September, 1889, there was no statutory obligation to give signals. (Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 496.) And so far as the alleged absence of signals might, under all the circumstances, have been treated by the jury as evidence of want of reasonable care proportionate to the danger, the question was fully and fairly submitted to them by the charge. The court used language which plainly showed that the charge only meant that the absence of signals would not amount to negligence in law. See Austin v. Staten Island R. T. R. R. Co., 39 State Rep., 76. Second: The proposition covered by the plaintiff’s second request was not sound, and it would have been positive error to have charged it. The jury might have found the facts to be as stated in that proposition, yet the legal conclusion of plaintiff’s right to recover might not follow. That conclusion, as the court said, in qualifying its refusal, partly depended upon other circumstances not covered by the request. The question whether, under all the circumstances, the flagman, in stopping the horses, acted as an ordinarily prudent man would have acted was wholly ignored, and the right to recover was attempted to be based upon the bare fact (if it were a fact) that he did stop them. The court is not bound to and should not charge a proposition any part of which is unsound. Hickenbottom v. D. L. & W. R. R. Co., 122 N. Y., 91,100 ; Lee v. Troy Citizens’ Gas Light Co., 98 Ib., 115-121; Soria v. Davidson, 53 Superior, 470; Ryan v. Miller, 12 Daly, 77. Third : The exception to the charge of the second and third propositions submitted by the defendant was not well taken. Those propositions were perfectly correct. Independently of the question whether, in the absence of a statute requiring signals, the jury would have the right to predicate negligence in fact upon the failure to give them, it is plain that the only office of a signal is to apprise the traveler of the approach of a train. If he be apprised in any other way whatever in time to avoid the accident, then the absence of signals has no causal connection with the accident, and is an immaterial fact. Pakalinsky v. N. Y. C., 82 N. Y., 424; Wohlfahrt v. Beckert, 92 Ib., 490,495. The charge was not erroneous. We suppose the appellant will attempt to argue that the court meant that the plaintiff could not recover if Burke, the driver, was guilty of negligence contributive to the accident. But that involves a forced construction of the charge. The court had instructed the jury that a recovery must be based upon “ the exclusive negligence of defendant and (the fact) that the plaintiff herself was entirely free from fault.” This can mean nothing more than that actionable negligence of the defendant must be exclusive of any contributory negligence of the plaintiff herself, a perfectly sound proposition, to which plaintiff did not except, and could not have done so with any propriety in view of the allegations in her own complaint. The only reference to Burke, the driver, in this part of the charge, is in a separate and independent sentence, also embodying a sound legal principle that if his negligence, instead of that of defendant, caused (not contributed to) the injury, plaintiff could not recover. This sentence shows plainly that the phrase “ exclusive negligence” did not refer to Burke at all, but to the defendant and plaintiff. “ If the language (of a charge) is capable of different constructions, that construction will be adopted which will lead to an affirmance, unless it fairly appears that the jury were, or at least might have been, misled. Losee v. Buchanan, 51 N. Y., 476, 492. At no time did the court charge and at no time was it requested to charge that Burke’s negligence could be imputed to the plaintiff. And the court’s comments were just. The whole case had been tried upon the question as to who caused the accident. The defendant’s contention was that Burke was wholly responsible, that his actions were the cause and the sole cause. There had been no suggestion of contributory negligence. It is plain that the jury so understood it, and that they found, in accordance with the overwhelming preponderance of evidence, that Burke alone was to blame. The rule is that if, upon the whole, the cause is fairly submitted to the jury, their verdict will not he disturbed because of defects in some part of the charge. Hickenbottom v. D. L. & W. R. R. Co., supra ; Caldwell v. N. J. Steamboat Co., 47 N. Y, 282, 286; Cont. Nat. Bank v. National Bank of Commonwealth, 50 Ib., 575. And since, to say the least, the court in the case at bar did not lay down an erroneous rule to the jury, its refusal (if there was a refusal) to charge this particular proposition, in addition to its full charge on the whole case, cannot be assigned as ground for reversal. Rexter v. Starin, 73 N. Y., 601.
   Per Curiam.

The vaction was for damages from the alleged negligence of defendant. The plaintiff was in a carriage hired at a livery stable and driven by a man from that stable. The driver was proceeding to cross the defendant’s railroad when a train was approaching. The carriage was on the track when the train struck it. The plaintiff was thereby hurt. On the trial the plaintiff’s counsel asked the court to charge the jury, that if the negligence of the defendant contributed to cause the injury, then it is no excuse to the defendant that the driver may have been negligent. The court recognized the principle of law involved in the proposition yet believed it to be inapplicable to the facts of the case. “I think in this case the controlling question is, was this the negligence of Burke, the driver, or was it the negligence of the railroad.”

It seems from the facts as they appear on the appeal, that the jury might have found that both the driver and the railroad were jointly negligent. It was admitted on the trial that the negligence of the driver could not be imputed to the plaintiff. This question of joint negligence was not sent to the jury. They were only asked if the railroad by itself was negligent or if the driver by himself was negligent. The plaintiff did not have the benefit of finding from the jury whether each was partly negligent and, therefore, both jointly negligent. For this reason there should be a new trial.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  