
    (88 Hun, 471.)
    DURKEE v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    L Accident, at Railroad Crossing—Failure to Give Signal—Evidence.
    In an action for injuries received in collision with a train at a highway crossing, one G., who was in the wagon with plaintiff’s intestate and was driving, testified that he looked and listened, and heard no signal as the train approached the crossing. Two other witnesses who witnessed the accident testified that they heard no bell or whistle, but that they were not listening for any signal, and their attention was not specially called to that fact at the time. Nine witnesses for defendant testified that the bell was rung and the whistle was sounded as the train approached the crossing. Melé, that there was an overwhelming preponderance of evidence that the bell was rung and the whistle sounded as the train approached the crossing, and a finding to the contrary could not be sustained.
    2. Same—Instructions.
    An instruction, in an action for injuries received at a railroad crossing, that the repeal of the statute which required signals to be given on the approach of a train to a highway crossing by the ringing of a bell or blowing of a whistle did not dispense with such warnings as might afford reasonable notice to travelers on the highway of the approach of a trcfin, was not erroneous or misleading.
    8. Same—Contributory Negligence.
    In an action for injuries received at a railroad crossing, it appeared that plaintiff’s intestate and one G. were riding in a wagon belonging to intestate, drawn by G.’s horse, and that G. was driving. From the point where the train first came in sight to the wagon was a distance of 50 feet, and on either side of the highway was an unobstructed surface on which the horse and buggy might have been turned; and proper care and attention on the part of G. and the intestate, had they looked and listened, would have enabled them to have turned aside and avoided the collision. There was evidence that G., on approaching the crossing, looked and listened, but there was no proof that intestate took that precaution, and there was also evidence that intestate and G. were driving leisurely along and talking at the time of the collision. Melé, that there was no evidence showing that intestate was free from contributory negligence, though it was claimed that, in consequence of the failure of the trainmen to signal the approach of the train, the horse became unmanageable and ran on the track.
    4. Witness—Credibility—Servant of Party.
    The fact that, of nine witnesses who testified for defendant railroad company that the bell was rung and whistle sounded on the train by which plaintiff’s intestate was injured at a crossing, the greater part were employés of defendant, is not alone sufficient to discredit them, where the only testimony to the contrary was that of three witnesses who testified that they did not hear any signal.
    Appeal from circuit court, Washington county.
    Action by William" H. Durkee, as administrator, against the president, managers, and company of the Delaware & Hudson Canal Company to recover damages for the death of plaintiff’s intestate, alleged to have been caused by negligence of defendant From •a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before MAYHAH, P. J., and PUTNAM and HERRICK, JJ.
    Lewis E. Carr, for appellant.
    A. V. Pratt (T. F. Hamilton, of counsel), for respondent.
   MAYHAH, P. J.

Three grounds for a reversal of the order and judgment in this case are urged by the defendant on this appeal: First, because, upon the whole evidence given upon the trial, it does not appear that there was any omission of duty on the part of the -defendant in operating the train, causing the death of Durkee, plaintiff’s intestate; second, the evidence was not sufficient to sustain a finding that the absence of signals of the approaching train, even if they "were not given, caused intestate’s death; third, the evidence was not sufficient to sustain a finding that the deceased exercised the care he was bound to, to establish absence of contributory negligence on his part.

The first point, it seems, from an examination of the case and the arguments of counsel in their briefs, is the alleged failure of the defendant to sound a whistle or ring a bell on approaching this railroad junction and road crossing, at which the accident occurred. While it is true that there is no longer any statutory requirement that such signals shall be sounded at such points of danger, it is .also true that railroad companies are not absolved from all obligations to exercise care and caution at such places; and a negligent disregard of that duty may constitute negligence, for which the railroad company in a given case may be held liable. This proposition seems to be conceded by the learned counsel for the appellant; but it is insisted that the proof establishes that signals were on this occasion given by the operatives of the train; that the whistle .-sounded when the train approached within 1,200 to 1,500 feet from the crossing; and that the bell was rung until the collision occurred. And it is urged by the appellant that there is upon this point such an overwhelming preponderance of evidence as to make it the duty of this court to find with the defendant upon this question. The jury having found with the plaintiff on this disputed question of fact, their verdict should not be interfered with on that question on this appeal, unless there is such an overwhelming preponderance of evidence on the part of the defendant as to lead to the conclusion that they have failed to have fairly and properly ■considered the evidence, or had adopted some erroneous method of extenuating its weight and force. The evidence on the part of the plaintiff, relied upon to establish his contention that no signals or • warning were given, is the testimony of Green, who was riding with •deceased, and driving the horse at the time of the accident. He ■says he looked and listened, and heard no whistle and no bell until just as the train struck him. Plaintiff proved this by two other witnesses, who stood at the depot, and saw the whole transaction, but heard no bell or whistle, but state that their attention was not specially called to that fact at the time, and that they were not listening for a signal from the train. On the part of the defendant, it was proved by the testimony of nine witnesses, who were in hearing and sight of the train, that the bell was rung, and, by some of them, that the whistle was sounded, as the train approached the place of the accident. Daly, who was near the depot, and Barrett, who was at the depot, and Gilbert, the conductor, Keating, the engineer, who was riding on the engine, testified to the sounding of the whistle and the ringing of the bell. Wooden, the express agent, Hogan and Whipple, trainmen on the train, and Finn, who was employed in the yard, testified to the ringing of the bell as the train approached the crossing, and at the time of the accident. All these witnesses assumed to testify to what they saw and heard. Their testimony is therefore of an affirmative character, and if not true must be regarded as deliberate perjury. On the other hand, the testimony of the plaintiff’s witnesses, who say they did not hear the bell or whistle, is of a negative character; and, while it may be entitled to great weight, it does not prove positively that the signals were not given. In Culhane v. Railroad Co., 60 N. Y. 133, Allan, J., in pronouncing the opinion of the court, and in discussing this character of evidence, uses this language:

“As against positive affirmative evidence, by credible witnesses; to the ringing of a befl or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to authorize the submission of the question to a jury. It must appear that they were looking, watching, and listening for it;—that their attention was directed to the fact,— so that the evidence will tend to some extent to prove the negative. A mere “I did not hear” is entitled to no weight in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact.”

Applying the reasoning of this case, and the rule here enunciated, to the case at bar, it would seem that the plaintiff had failed to-prove the negative, except by the testimony of the witness Green. He testifies that he looked and listened, but the force of his testimony is somewhat weakened by the testimony of Baldwin and Moran, who say that Green and the intestate appeared to be in conversation, and did not appear to be observing the approaching train. Baldwin and Moran, who swear they did not hear the whistle, state that they were not listening for a signal. All of the defendant’s witnesses upon this branch of the case swear to what they claim to have seen and heard.

But it is urged by the learned counsel for the plaintiff that their testimony should be taken with a great degree of allowance, for the reason that they, or most of them, were the employés of the company. While the jury might take that fact into consideration, it does not seem that that fact alone would justify the jury in entirely disregarding and treating as untrue the testimony of so large a number of witnesses, when no other circumstance is presented to discredit them. It is urged by the defendant that -Green, who has an action pending against the company for the same accident, had a stronger motive for giving color to his testimony than any of the witnesses introduced on the part of the defendant. Viewing this testimony in the light of the rules for weighing evidence, it would seem that there was an overwhelming preponderance of proof in the case that the whistle was blown and the bell sounded at the ■time the train approached this crossing; and, while we have seen the court should not interfere, in a substantially evenly balanced ■case, or even where there was an apparent preponderance of evidence, with the conclusion arrived at by the jury, still, it would seem, if in any case it was the duty of the court to interfere with the verdict upon questions of fact, this is such a case. In Kaare v. Iron Co. (N. Y. App.) 34 N. E. 901, Earl, J., in pronouncing the opinion •of the court of appeals, after adverting to the rule that deference may properly be paid to the views of the trial judge who heard the witnesses testify, in cases where there is a fair conflict in the evidence, yet no marked preponderance either way, adds as follows:

“But, when there is a vast preponderance in the evidence in favor of the «defendant, and the defense is supported by numerous witnesses, apparently entitled to credit, and the plaintiff’s case stands upon his own evidence, either unsupported or slightly supported, the general term should exercise an independent judgment and give the defendant appealing to it the full benefit which the law, by the right of appeal, intends he should have."

The learned judge, in using this language, is discussing the duty •of the general term to interfere, on appeal, by an examination and review of the facts, and by reversing where the verdict of the jury is manifestly against the overwhelming weight of evidence; and he adds:

“If, under such circumstances, the general term will refuse to grant a new trial on the ground that the verdict is against the weight of evidence, it is •difficult to conceive of any case where it ought to do so, and an appeal to it in ■such a case will be entirely useless.”

It would seem to follow that, in cases of this character, the general term, on appeal, is under the same obligation to review and reverse the verdict of a jury and judgment thereon, when it is overwhelmingly against the weight of evidence, as it is to reverse for errors of law committed by the judge, where the question has been properly presented by a motion for a new trial on the judge’s minutes, on the ground that the verdict is against the weight of evidence.

It is insisted by the learned counsel for. the defendant that the trial judge erred in discussing before the jury the defendant’s obligation to give some signal by the ringing of a bell or sounding of a whistle, or in some other way, on approaching the highway crossing. While the instruction of the trial judge to the jury upon that branch of the case may not be as full and complete as the defendant’s •counsel might wish, yet we fail to see that any erroneous ruling or direction by the trial judge was made upon that point. The effect ■of the charge was that, notwithstanding the repeal of the statute which required railroad companies to signal the approach of a train at a highway crossing by the ringing of a bell or blowing of a whistle, yet that did not absolve them from giving such warning as might afford reasonable notice to the traveler upon the highway of the approach of the train. Such instruction was not erroneous or misleading.

It is further insisted 'by the learned counsel for the defendant that the case does not disclose facts from which it can be found that plaintiff’s intestate was himself free from negligence which caused or contributed to the injury; and that, if it can be held that defendant was negligent in omitting to give proper signals, still the-plaintiff should not recover because of such failure of proof. The undisputed facts are that intestate and Green were riding in.a. wagon belonging to intestate, drawn by Green’s horse; that Green-was driving; that from the point where defendant’s train first hove in view to where intestate and Green were in the highway was a distance of 50 feet; that on either side of the highway was a clear, level, unobstructed surface, upon which the horse and buggy might have been turned; and that proper care and attention on the part of Green and the intestate, had théy looked and listened, would have enabled them to have turned aside and avoided the collision; and that in failing to do so the intestate was guilty of negligence which contributed to the injury. To meet this contention on the part of the defendant, it is claimed by the plaintiff that the’ horse attached to the vehicle in which intestate was riding became unmanageable, and, despite the efforts of the driver, ran over this inter-, vening distance between the train and the vehicle, and dashed upon the track, without fault of the intestate or Green; and that the negligent omission of the trainmen to give signal of the approach of the train was the cause of the horse becoming frightened. While there' is evidence that Green, on approaching the railroad crossing, looked and listened, there is no proof that intestate took that precaution; and it is proved by the evidence of Moran that he and Green were talking while driving leisurely along the road about the time of the collision. We find in this testimony no evidence affirmatively establishing the "freedom of the intestate from contributory negligence. In Brickell v. Railroad Co., 120 N. Y. 290, 24 N. E. 449, which was somewhat analogous to the one under consideration, where the intestate was riding in a buggy seated beside a driver, and the approaching train could be seen for some-distance before crossing, at a location well known to both, and that neither made any effort, by looking or listening, to discover the approach of the train, it was held that the plaintiff was properly nonsuited on the ground of contributory negligence of the intestate. It is true that in that case the driver was hired by the deceased to convey him to a given point. The case at bar differs from that, in this: that the deceased was riding in his own buggy, which was-drawn by a horse owned by the driver. But that fact, instead of releasing the deceased from the obligation of looking and listening, would seem to increase that obligation; and Potter, J., in delivering the opinion in the case cited, uses this language:

“The general rule in this class of cases is that the burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff, or, in the language of the opinion in Tolman v. Railroad Co., 98 N. Y. 202, that ‘plaintiff approached the crossing where the collision and injury occurred with prudence and care, and with a sense alert to the possibility of approaching danger’; and the learned judge adds: ‘And this rule obtains, even where the railroad company neglects to ring its bell or sound its whistle, as required when its trains approach a crossing.’ ”

In Donnelly v. Railroad Co., 109 N. Y. 16, 15 N. E. 733, the plaintiff was riding on a fish wagon with one McNee, which the latter was driving, and the plaintiff gave some direction as to where McNee should drive, and, following that direction, the wagon collided with a moving train on defendant’s railroad, and plaintiff was injured. It was held that the plaintiff’s evidence showed contributory negligence on the part of plaintiff and his companion, with which he was chargeable, and a refusal to nonsuit was held error. Tested by these cases, and by the well-settled law, we are of opinion that the plaintiff failed to show want of contributory negligence, and that for. that reason the motion for a nonsuit should have been granted; and that the verdict in favor of the plaintiff cannot be sustained; and that it was error on the part of the learned judge to refuse to set aside the verdict and grant a neV trial, on the minutes, on the defendant’s motion.

Judgment must be reversed, and a new trial granted; costs to abide the event. All concur.  