
    ELIZABETH GONZALES, Administratrix, &c., of John H. Gonzales, deceased, Plaintiff, v. THE NEW YORK AND HARLEM RAILROAD CO., Defendants.
    It is prima facie negligence for a person to go upon a railroad track, and omit the precaution of looking to see if any train is approaching. If an injury is received by reason of such neglect, the injured person cannot recover.
    It is equally negligent for a person bereft of sight or hearing to go upon a railroad track without- aid or assistance. If, in consequence of such inability to see or hear, an injury is sustained, the injured party cannot recover.
    Before Barbour, C.J., Fithian and Freedman, JJ.
    
      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The action was to recover damages against defendants, carriers of passengers for hire, for negligently causing the death of John H. Gonzales, plaintiff’s intestate. On the 15th of November, 1864, Gonzales took passage on one of defendants’ “ way” passenger trains for the village of West Mount Vernon, where he resided, and at which place was a station on defendants’ road. At that place there is a double track on defendants’ road running nearly north and south. The train on which Gonzales was a passenger was going north on the east or right-hand track. At Mount Vernon, on the east side of that east track, was a platform one hundred and eighty-five feet in length, along-side the track, for landing passengers from trains going north. The ticket-office and depot, however, were on the west of the west track, where there was also a platform for landing passengers from trains going south on the west track. Gonzales’ house was likewise on the westerly side of both railroad tracks,'so that on alighting from a train going north it was necessary for Gonzales, in order to reach his house, to cross the track from the east to the west side. At the south end of the east platform is a street, crossing the railroad tracks at right angles, running east and west. On the arrival of the train in which deceased was a passenger at Mount Vernon station it. stopped, and the deceased, instead of .alighting on the ,platform on the east side of the car, got out on the west side, directly between the railroad tracks, and as he was attempting to cross or approach the west track he was struck by an “ express ” train going south at full speed, and thrown under the wheels of the train which he had just left, and which was then just starting forward, and so badly injured that he died in consequence. This occurred in full daylight; and it was shown that at that time the railroad tracks were straight, and nothing to obstruct the view for several hundred feet each way. It appeared, also, that the deceased had resided - at Mount Vernon for seven or eight years, and was in the daily habit of passing to and from New York (his place of business) on defendants’ cars, and must, therefore, have been acquainted with the time-tables and the running of trains. There was also contradictory evidence as to whether the “ express” train gave any signal, by bell or whistle, when passing the station. The cause was twice tried. On the first trial plaintiff had a verdict and judgment in her favor. On appeal to the Court of Appeals, the judgment was reversed and a new trial ordered, on the grounds that there was negligence on the part of deceased in going, or attempting to go, on the west track under the circumstances; that Gonzales must have omitted to look out for this passing train, and such omission was negligence on his part; and further, that upon the evidence it is not entirely clear whether deceased received his injury from being struck by the express train, or from having attempted to get down from the car on which he was a passenger before that train had come to a full stop, and was thereby thrown under the wheels of the train while in motion, and that in either case it was negligence on his part. On the second trial, from the judgment on which this appeal is taken, the foregoing facts were shown, and also it was satisfactorily proven that the train on which deceased was a passenger had come to a full stop, and one of the brakemen on the car had called out, “ All out for Mount Vernon,” before Gonzales left the car. It was also proved by plaintiff that before this Gonzales had sustained an injury to his byes, whereby his sight was so impaired that he could only distinguish such objects as were very close to him, and those imperfectly and with the aid of glasses. Evidence was given on both sides, at the close of which the court ordered judgment of dismissal of the complaint with costs, on defendants’ motion, to which plaintiff’s counsel excepted, and the exceptions were ordered to be heard at the General Term in the first instance.
    
      Mr. R. W. Van Pelt for plaintiff.
    The negligence on the part of the defendants in running the trains in question, so as to meet at the station, and their omission to give any signal of the approach of the express train, are "undisputed, and unless the deceased, by his own negligence, contributed to the accident, the defendants are liable.
    The deceased was guilty of no negligence whatever, and the injury complained of resulted solely from the carelessness and negligence of the defendants.
    In order to sustain the dismissal of the complaint on the last trial, this court must hold that it was negligence fcr se for the deceased to ¿et out of the train on the depot or westerly side of the track, and if such a principle is established every passenger who resides upon the opposite side of a railroad track, or whose , business renders it necessary for him to cross it, is placed entirely at the mercy of a railroad company.
    There is no, law, statute or common, requiring passengers to alight on one side or the other of a track; there is no rule or regulation of the defendants requiring passengers to alight on the easterly.side of their track.
    The sole question for the court to decide in this case is, whether a railroad company can escape liability for carelessly and negligently causing the death of a passenger whose only offence is inability, through impaired vision, to discover an approaching train beyond the distance of one hundred feet.
    
      
      Mr. Charles A. Rapallo for defendants.
    The motion for a dismissal of the complaint was properly granted.
    Gonzales was grossly negligent in undertaking to alight from the cars in the manner he did, and his death resulted wholly from this negligence.
    He not only neglected to avail himself of the means provided by the defendants for the safe landing of their passengers, viz., the platform, but recklessly jumped from the opposite side of the car upon the track at the very moment that an express train was passing.
    “A railroad' company that has provided sufficient platform for the egress of passengers from their cars is not liable for injuries to a passenger sustained in consequence of his voluntarily leaving them on the opposite side, and stepping on the other track instead of on the platform ” (Penn. St. R.R. Co. v. Zebe, 33 Penn. St. Rep., 318).
    It is negligence for a blind man to go upon a railroad track.
    If he has not the means of seeing or avoiding danger, he is not justified in exposing himself to it in the expectation of holding others responsible for the consequences of his infirmities.
    Contributing negligence is not excused even in case of infants and lunatics, and the same rules are applied to them as to persons in the full possession of their faculties (Honegsberger v. Second Ave. R.R. Co., Court of Appeals, How. Pr. Rep., 33, p. 201; Hunger v. Tonawanda R.R. Co., 4 Com., 349; Willets v. Buffalo and Roch. R.R. Co., 14 Barb., 14; Spencer v. Utica and Sch. R.R. Co., 5 Barb., 337; Cott v. Lewiston R.R. Co., 34 How. Pr., 222, and case cited; Burke v. Broadway and Seventh Ave. R.R. Co., 34 How. Pr., 249).
   By the Court:

Fithian, J.

That, the managers of defendants’ express train were guilty of negligence in passing that station without giving the usual and ordinary signals, must be assumed, for there was evidence upon which the jury might well have so found, had the cause been submitted to them. " The only question in the case, then, is, considering the defendants to be guilty of negligence, whether there was negligence also on the part of the deceased, contributing to the injury. If so, it is settled there can be no recovery.

The Court of Appeals have decided in this case that it was clear, upon the evidence before that court, Gonzales omitted to look and see if there was any approaching train before attempting to cross the track; that if he had so looked he must have seen the express train and avoided the injury; and that such omission was negligence on his part so as to debar a recovery. This must be taken as the law of this case; we could not 'change it if we would; that is also settled to be the rule in all cases. In the case of Wilcox v. the Borne, Watertown, &c., Railroad Company, decided by the Court of Appeals in June last (1868), it was held to be negligence per.se for a person to go upon a railroad track, and omit to exercise his ordinary powers of vision, when by so doing he could see and avoid any approaching ear or engine. Miller, J., reviewed all the cases on the subject, and showed clearly that the principle was recognized in every ease; that in every case where a recovery had been permitted without the precaution, “ circumstances existed tending to show that the sight was obstructed, or to fender it at least doubtful whether the party was in fault, so that it was proper for, the jury to pass upon the question of negligence.” Grover, J., wrote a concurring opinion, and the decision of the court was unanimous. It must, therefore, be considered settled by the court of last resort, that for a person to go upon a railroad track without exercising the ordinary sense of hearing and seeing, with a view to discover and avoid any approaching obstacle, is, of itself, prima facie,an act of negligence. And if an injury happen to the person in consequence of so being upon the track, the burden is upon the injured party to show a legal excuse for omitting thus to avail himself of the protection afforded by his ordinary senses. He may show that, by some matter or thing over which he had no control, the view or sounds were so obstructed that seeing or listening would have afforded no protection; or that, by some act or neglect of the alleged wrongdoer, he was justifiably excused from so looking; some fact must be shown which will take the case out of the general rule above stated.

The inquiry in this case, then, is whether on the second trial any evidence appeared, not proven on the first trial, sufficient to excuse plaintiff’s intestate for his omission to see and avoid the express train, and thereby except the case from the effect of the decisions above cited.

On the last trial it was conceded that deceased did not look, or attempt to look, for the reason, as it was then for the first time proven, that his sight was so impaired he could not see an approaching train; that for all purposes oí protection by the sense of sight, from an approaching train, he was substantially blind. And it was further claimed, that he was excused for thus going upon the track unable to see, and without protection, by the act' of defendants’ servant in calling: “All out for Moxont Vernon ! ” It was claimed tiffs cell was equivalent to an assurance to the passengers, by the defendants’ servants, that they could safely go upon the track without care or precaution. These words cannot possibly bear such a construction; they were merely notice to the “Mount Vernon” passengers that they had arrived at their place of destination; that, so far as they were concerned, the company had performed its contract with them, and they were requested to leave the defendants’ cars by the usual and ordinary mode of exit provided by the carrier, viz., the platform. This notice, and the passenger leaving the car in pursuance of it, terminated the relation of passenger and carrier. And how it could be construed by any person of ordinary intelligence into a further license or permit unnecessarily to go upon defendants’ railroad track with impunity and exempt from the duty of observing ordinary care and precaution, I am unable to see.

The remaining question is, whether the deceased was excused for not looking for the approaching express train by reason of Ms blindness; or, in other words, is it equally an act of negligence for a person who cannot see to go upon a railroad track unattended, as it is for a person who can see and omits to do so ? In a person possessing the ordinary powers of vision, the negligence consists not alone in omitting to use them but in presuming to go upon the railroad track, knowing cars were likely to pass at any certain or uncertain time, without first taking that precaution wMch a person of ordinary care and prudence, possessed of ordinary faculties, would be likely to do, viz., to look for any approaching train.' Is it not equally negligent for a person who does not possess the sense of sight to go, without assistance, upon a track where eight years’ experience had told him trains were frequently passing and are expected and known to pass just about that time?

Negligence is defined to be the omission to observe that care which a man of common prudence takes of his own concerns.” In the case of Hatfield v. Roper (21 Win., 615), the plaintiff, a child two years of age, was suffered by its parents to go in the highway, and was there negligently injured by defendant’s horses and sleigh, in the custody of defendant. It was held to be an act of negligence on the part of the parents or guardians to suffer a child of so tender years to be in the highway; and that this was the negligence of the infant, although it did not possess the faculties of a person of full age and discretion; and that the same rule would apply to an idiot or lunatic, which rule was applied to a lunatic in the case of Willets v. Buffalo and Rochester R. R. Co. (14 Barb., 585), where it was held that the act of a custodian of a lunatic, in leaving him unattended so that he was put off the cars on a railroad track for refusing to pay his fare, and run over and killed by another train, was negligence, chargeable to the lunatic himself, such as to preclude a recovery by the administrator. I understand the doctrine'of all these authorities on the subject of actions for negligence, to be, in substance, that, to enable a plaintiff to recover for an injury sustained by the negligence of another, he must show that in the particular case he exercised all the care and prudence which persons of usual and ordinary faculties would be likely to exercise, under similar circumstances, to avoid the injury. It follows, therefore, that a person bereft of sight or hearing cannot recover for an injury resulting from an act, or partly from an act, done blindly* which injury could have been avoided by the possession and exercise of the sense of sight or hearing, because it was negligence in him to go upon the track without first supplying, through the aid of others, those faculties of which he was himself bereft.

In this case, the plaintiff’s intestate, Gonzales, was possessed of all his faculties save eye-sight. He had resided eight years on the line of defendants’ railroad, passing over it, to and from this particular station, nearly every day. He was familiar with the mode and place provided for ingress and egress to and from the cars,'the number of tracks, the number and time of trains passing north and south. He must have known that there was an express train passing south, due at that station, at or about that time. The time-table, put in evidence by plaintiff, shows that the express train, and the train that Gonzales was on, pass that station within a minute of each other; the express train being a minute later. So that, if both trains were on time, Gonzales would have just one minute in which to get out and cross the railroad track ahead of the “ express.” In this case, either the express was a minute ahead, or the way-train a minute behind time, for the trains met at that point. The plaintiff (Mrs. Gonzales) says she saw from her house her -husband standing on the, platform of one. of the cars, ready to get off, just as the train was coming to a stop. Another witness for plaintiff testifies he saw the whole occurrence from his own residence. He saw the express ■ train approaching from the north, at some distance off, before the way-train from the south had stopped its motion. As the way-train stopped, looking across the south end of the depot, he saw Gonzales in the act of getting off the platform of one of the cars. At the .same-instant he saw the express train disappear behind the north end of the depot, and just as Gonzales stepped on the track he was struck by the express train in passing. Thus it appears that this blind man, knowing, as he must have known, there was a train about to pass—instead of leaving the car on the side and in the manner and at the place provided for such purpose, where there was no exposure to injury, and not attempting to cross the track until the express” had passed, or he had assured himself it was safe to do so—gets off on to the trade in an exposed place, and steps directly in front of the passing train. This is not only negligence but extreme recklessness, inexcusable by any known principle of law or reason; and this upon the assumption that he was substantially Hind. That, however, was not the fact wholly. His sight was much impaired, but it was proved and conceded by plaintiff’s counsel that he could see an approaching train ninety or one hundred feet. The ordinary exercise of even this much vision would have saved him. Tor, as he stepped upon the ground from the way-train, the express could not have been ninety feet from him, and a single glance in that direction would have prevented the accident. He did not look, but walked directly into the engine of the express train.

I appreciate fully the hardship and suffering caused by a misfortune of this kind, and would gladly afford relief to a family thus bereaved if I could consistently do so. But the rules of law and the decisions of the courts must be adhered to.

The plaintiff’s motion for judgment must be denied, and the order dismissing the complaint affirmed, with costs, and judgment ordered for defendants.-

Barbour, C.J.

(dissenting). There was one question in this case which, it appears to me, ought to have been submitted to the jury, viz.:

One of the witnesses, who was a passenger with Gonzales upon the train, testified that; after the train had reached Mount Vernon, one of the brakemen of the company came and hallooed for the passengers to get out, saying, “All out for Mount Vernon; ” and that the witness, after the train had stopped, got off the car upon one side as Gonzales was getting off from the other side; and that he heard no signal, by bell or whistle, from the coming express train. Indeed, the fact that no signal was given by the incoming train was fully established by the evidence in the" case.

The question,- then, is, whether Gonzales, not hearing the signal which he, as an old resident of Mount Vernon and a frequent passenger upon the cars, must have known was usually made by an incoming train, and hearing the direction of the brakeman to the passengers for that place to get off the cars, had not a right to receive such directions as an assurance on the part of the company that it was perfectly safe to obey such directions, and get off the car, as he did, without looking to see whether another train might not be coming.

I think this case is a much stronger one in favor of the plaintiff upon the point in question than was that of Ferris v. The Union Ferry Co. (37 N. Y. R., 312), where it was held by the Court of Appeals that the mere letting down of the guard-chain of a ferry-boat, by an employe, as was customary upon the arrival of such boat at her dock, was such an assurance to the passengers that the boat was properly secured to the bridge, and the exit safe, as justified them in attempting to walk off from the boat in the ordinary way, and that negligence could not be imputed to them for doing so. In that case, it was the mere sound of a dropping chain that induced the plaintiff to suppose the boat was fastened to the bridge, while here, the passengers, it appears to me, might well consider the directions of the brakeman as an assurance by an employe of the company that the passengers could obey that direction with safety, and alight from the cars.

Besides, it is to be considered that the person injured was partially blind, and, for that reason, was not only, probably, compelled to rely upon information obtained from others to supply his defect of vision, but he had a perfect right to do so. His being upon the cars, although partially blind, was not negligence per se / nor, being there, would an attempt to get off when the cars stopped have been, negligence raider all circumstances. In leaving the train, however, he was bound to do all that a prudent, cautious man, in his condition, would have done to insure the safety of his person. If such a man, for instance, would not have relied, absolutely, upon the fact that no bell or whistle had been sounded indicating the coming of a train, but would have inquired of some bystander whether it was safe to get out, it would have been the duty of Gonzales to obtain the information from some one who could see. But, certainly, it was not necessary for him to make such inquiry after the direction of the brakeman was given, if he had a right to believe, considering all the circumstances, that such direction was, in effect, an. assurance to the passengers that all was safe.

For these reasons, I am of opinion that the learned justice erred in directing a dismissal of the complaint, instead of submitting tbe question as to negligence on the part of Gonzales to the jury; and that the order dismissing the complaint should be reversed, and a new trial granted, with costs to abide the event.  