
    McGrath, adm'r &c. vs. The Hudson River Rail Road Company
    In an action for damages arising from negligence, the plaintiff must prove the defendant’s negligence, and his own freedom from any negligence contributing to the injury.
    The facts may be so clear and decided that the inference of negligence is irresistible ; but where either the facts, or the inference to be drawn from them, are in any degree doubtful, it is the duty of the judge to submit the whole matter to the jury, under proper instructions as to the law.
    Where, in an action by an administrator, against a rail road company, for causing the death of the plaintiff’s intestate by negligence, the court non-suited .the plaintiff, on account of the negligence of the deceased, contributing to the injury, and refused to submit the question as to such negligence, to the jury; thereby substantially holding that a verdict for the plaintiff would be set aside as unwarranted by the evidence; it was held that such decision was erroneous, and a new trial was granted. Gould, J. dissented.
    Such a disposition of the case can only be sustained upon the ground that there is no aspect in which the case can be considered which will justify a verdict for the plaintiff.
    While it is the established law that a party whose negligence contributed to the injury cannot recover damages therefor, this rule, which does not allow the jury to weigh the comparative negligence of the litigating parties, should not be extended so far as to take from the jury the right to determine (except in a very clear and certain case) whether such negligence has in fact been committed. Per Hogeboosi,'J.
    Inasmuch as the law does not require, of persons passing on or over a public street or thoroughfare, extreme care or very exact diligence, though a rail road may cross it on the same surface, it does not deprive a party injured of redress, although he was guilty of slight neglect which contributed to the injury. Per Peckham, J.
    
      ÁCTIOH brought by the plaintiff as administrator of Mary McGrath, deceased, under the act of December 13, 1847, requiring compensation for causing death by wrongful act, neglect or default, as amended in 1849, (Lavjs of 1847, oh. 450; Laws o/1849, ch. 256,) to recover damages for the death of the plaintiff’s intestate, a little girl about twelve years of age, alleged to have been caused by the negligence and improper conduct of the defendant and its agents. The action was tried at the Rensselaer circuit, in February, 1857, before Justice Gould and a jury.
    The evidence showed that in June, 1855, the deceased was killed by the cars of the defendant, at the city of Troy, while she was in the act of passing, on foot, the rail road crossing over Fourth street. At that point the defendant had two tracks, upon one of which, at the time of the injury, a train was passing rapidly south, and one, upon the other and east track, was slowly backing north. The deceased was traveling from the south, on the east side of Fourth street, and as the down train passed had reached the middle of the east track when struck by the backing train, and killed. Ho whistle was blown, or bell rung, upon the backing train. The bell on the down train was rung. The flagman was on the west side of the track, the flag-house being on the east side. At the time of the accident, a man was standing on .the rear platform of the backing train, but was not at the brake, which was on the east side of the platform, he being on the west side and looking west. The occurrence took place in the south part of the city of Troy, just at the point where the union rail road leaves Fourth street, passing towards Hill street. It happened about 9 o’clock in the forenoon, the weather being fine and clear. This road has a double track, and just before, a train of cars passed down (south) on the west track, while the train that ran over the girl was being backed up (north) on the east track. The backing train was going slower than an ordinary walk. There was, at the time, a man standing on the platform of the cars, but not at the brake. He was at the west side of the platform, and the brake at the east. Only two witnesses were sworn who saw the girl before the occurrence, Nicholas Mahan and Stephen Myers.
    Mahan testified: “I first saw the girl after the train on the west track had passed down—had passed me. She was then coming up Fourth street; she was pretty near the flag-house—a little beyond the flag-house, towards the track; she was on the track when I first saw her; she was facing up street; the backing train was within two or three feet of her ; I thought she was almost on the rail—so near the rail that she was just stepping on to it; the girl was off the track— outside the track, when she was hit; the cars hit her and tumbled her on to the track. I was about twelve yards from her, when she was hit; may be more; I went up to the girl; she was alive when taken from under the cars; was dead when I left."
    Myers testified: “ I was on Fourth street, east side of the track, when I first saw the girl; I was, I should think, be-. ■tween three and four feet from her; she was on the track between the two rails; the cars were between three and four feet of her; I was passing in the same direction she was • I observed the train that was backing up; I had got within three or four feet of it when I observed it; I saw the cars and the girl on the track at about the same time; the girl and I were on the east side of Fourth street; the girl was killed opposite the east sidewalk (Fourth street,) within the rail road track. The gore west of Fourth street is open, no buildings on it; I saw the girl take two steps; she raised her foot and put it down and raised it again; she appeared to be walking west towards the train going down. I did not see any thing of the girl until about the instant she was struck; I did not see the cars until about the instant they struck her."
    Upon this testimony the judge nonsuited the plaintiff, upon the ground “that the evidence showed the deceased was guilty of negligence which contributed to her death,” and refused to ¡allow that question, or any of the questions of fact to be submitted to the jury. The plaintiff excepted, and the case now came before the court upon the exceptions thus taken.
    
      W. A. Beach, for the plaintiff.
    
      T. M. North, for the defendant.
   Hogeboom, J.

In actions for damages arising from negligence the plaintiff must prove the defendant’s negligence, and the plaintiff’s freedom from any negligence contributing to the injury. In this case, the judge, without deciding the question of the defendant’s negligence, nonsuited the plaintiff on account of negligence on the part of the child. He refused to submit the question to the jury as to the latter point, therefore substantially holding that a verdict for the plaintiff would have been set aside as unwarranted by the evidence.

What constitutes negligence is often, perhaps generally, a difficult question to decide. It is determined, for the purposes of a court and jury, by an inference of the mind from the facts of the case; and as minds are differently constituted, the inferences from a given state of facts will not always be the same. The facts may be so clear and decided that the inference of negligence is irresistible; but where either the facts or the inference to be drawn from them are in any degree doubtful, the better way is to submit the whole matter to a jury, under proper instructions as to the law. This is the more necessary, in cases of negligence, because of the great variety of considerations which enter into that question. The difficulty is increased by the fact that negligence is of different degrees, and because the fact whether negligence is slight, ordinary or gross, depends upon the peculiar circumstances of each case. The same facts might constitute great negligence in one case, which would scarcely amouut to slight negligence in another.

Again; negligence, which is nothing more than the want of care'—proper care'—is more or less affected by the conduct or action of the opposing party. It is not always negligence to cross a rail road track at times when a train is not due or cannot be reasonably expected to pass; nor to cross a rail road track without looking for a train, when no signal of its approach is given, by the ringing of a bell or otherwise. It may not be negligence, that is, a degree of negligence which shall deprive a party of damages, to cross a rail road track immediately after a train has rapidly passed with much noise and ringing of bells, although another train, giving no signal of its approach, may be noiselessly approaching from an opposite direction on a contiguous and parallel track.

Whether such conduct is negligence, in this particular case, must depend upon a consideration of all the circumstances, and is a conclusion to be deduced from a careful and prudent examination of all the facts, and the legitimate inferences to be drawn therefrom. Ordinarily, therefore, it should be left to a jury to determine, and their determination, when founded upon conflicting evidence, or upon the uncertain deductions to be derived from particular facts, more or less clearly established, cannot generally be disturbed.

In this case I am of" opinion that if the noise and ringing of bells, attending the descending train passing rapidly across a public thoroughfare was so great as not only naturally to attract the attention of a person of ordinary caution, approaching from a nearly opposite direction, but naturally to make such person unaware of the approach of a train coming with very little noise from an opposite direction and giving no signal of its approach, an injury inflicted by the latter train is not the result of negligence practised by the party receiving the injury, in such a sense as deprives him, or his representatives, of an action for the same.

The greatest caution is very properly required of those who propel engines having such vast power of mischief; and while it is the established law that a party whose negligence contributed to the injury cannot recover, this rule which does not allow the jury to weigh the comparative negligence of the litigating parties, should not be extended so far as to take from the jury the right to determine (except in a very clear and certain case) whether such negligence has in fact been committed.

The facts presented in this case seem to me of such a character as to require their submission to a jury, upon the demand of either party. Assuming that the deceased is to be held to the same degree of care which is demanded of an adult person, the girl was rightfully on the street; she had a right to cross the rail road track; she was obliged to do so, if her business led her north. A train was just passing to the south with rapidity, the bell ringing and the whistle sounding. It naturally and reasonably attracted her attention. It was possible, though not probable, that nearly at the same moment another train should pass in the opposite direction. It was not proper, but negligent, on the part of the defendant, to allow it so to pass without signalizing its approach. It was reasonable to expect that such warning and notice would be given. If it was not given, I think it was reasonable and prudent to conclude that no other train was approaching, and consequently that there would be no danger in crossing the track. It may be true that extraordinary caution would have demanded that the girl should have looked to the south, as well as to the north and west. I cannot say that it was such negligence not to do so as should defeat the action, if the backing train was proceeding so noiselessly as not naturally to have excited the attention of a prudent person.

I am therefore of opinion that a new trial should be granted, unless there are some adjudications which settle the rule in a contrary direction.

I do not discover, in any of the cases to which reference has been made, any adjudication which forbids the granting of a new trial in this case. The cases unquestionably hold that a nonsuit may be granted in cases of this character, as in other cases, where the proof is insufficient to maintain the cause of action; that clear proof of negligence on the part of the plaintiff entitles the defendant to demand a nonsuit; that where the facts are undisputed, and the inferences to be drawn from them clear, and leading only to a single result, the question becomes one of law for a court to determine; that where there is full opportunity for observation, and abundant means for avoiding a collision, such as would occur to, and be embraced by, a person of ordinary prudence, the plaintiff is negligent for not embracing them.; and that the plaintiff is not relieved from the imputation of negligence unless his conduct is deprived of that character by the defendant’s own act or default.

Nevertheless, there are cases so nearly balanced, both as to the facts, and as to the inferences to be derived from them, that a court cannot safely, against the objection of a party, remove them from the consideration of the triers of questions of fact; and when such a course is taken against the will of a party, it can only be sustained upon the ground that there is no aspect of the case in which it can be considered, which would justify a verdict for the plaintiff. I do not regard this case as of that character, and am therefore of opinion that the nonsuit should be set aside, and a new trial should be granted, with costs to abide the event.

Peckham, J.

(After stating the facts.) Only one ground was presented for a nonsuit; and it is not therefore material to consider any other. The sole point here is, did the evidence so clearly prove the deceased guilty of negligence contributing to her injury that as matter of mere law the court should so decide; or was the case on that subject of such a character as to require its submission to a jury ? The doctrine is laid down in general terms, that to sustain this action it must appear that the negligence of the defendants alone caused the injury. "If the negligence of the deceased contributed, the action cannot be maintained.

What is meant of negligence of the party injured contributing to the injury, in such a case ? There are different degrees of negligence or care, known to the law. In speaking of the various degrees of care or diligence, Sir William Jones says, “ there are infinite shades from the slightest momentary thought or glance of attention to the most vigilant anxiety and solicitude.” Again, he says: “ The care which every man of common prudence takes of Ms own concerns, is a proper measure to he required in performing every contract, if there were not strong reasons for exacting in some of them a greater and permitting in others a less degree of attention.” If the construction be favorable, a degree of care less than the standard will be sufficient; if rigorous, a degree more will be required.” (Jones on Bail. 5, 6. Ang. on Law of Carriers, § 6.)

The civil and common law make three degrees of negligence. 1. Gross—which consists, according to Sir W. Jones, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property. This is regarded as equal to fraud or bad faith. 2. Ordinary neglect. The want of that diligence which the generality of mankind use in their own concerns, that is, of ordinary care. 3. Slight neglect. The omission of that care which very attentive and vigilant persons take of their own goods, or of very exact diligence. (Jones, 21, 22. Ang. on Carr. §§ 5, 10.)

If the party injured be bound to exercise the greatest care, then no case can be found where an action could be maintained. I think the past has furnished no exception to this position, not even where the rail road is on the same surface with a public road and occupying a part of it, either for the purpose of crossing or otherwise. If he had looked the other way, or thoroughly in all directions; had gone a little faster or a little slower; if he had stopped and made inquiry as to when the cars were coming to cross the track, he had not been killed. To require the strictest care from them would afford no practical protection to the public, and would of course give encouragement and impunity to negligence by the rail road companies. While it is important to foster commerce and facilitate intercommunication, there is no reason why either should be done at the expense of human life. I am not aware that it has ever been adjudged, by any court, that extreme diligence, or in the language of Sir William J ones, very exact diligence,” can he required of persons passing on or over a public street or thoroughfare, though a rail road may cross it on' the same surface.

As the law does not then exact extreme care, it does not deprive the party injured of redress, though he was guilty of slight neglect, which is the absence of extreme care, and though that slight neglect contributed to the injury. The rule is stated almost in these terms by Harris, J. He says: Where the negligence of the defendant is proximate, and that of the plaintiff remote, the action may be sustained.” (Button v. The Hudson River Rail Road, 18 N. York Rep. 258.) That a person is required to exercise only ordinary care to avoid injury, in these cases, would seem to be established, if authority can establish any thing. I shall not refer to the decisions laid down. It is a rule as to diligence that the party must proportion his care to the injury likely to accrue to others by any improvidence on his part. Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding it are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight.” (Per Johnson, J. Kelsey v. Barney, 2 Kern. 429, 30.) This is a sound rule—• healthful in its practical application. People in this country, in passing over public roads or streets crossed by rail roads, will bestow about so much attention. They desire to save their limbs and lives, and a book filled with statutes of pains and penalties, or disabilities, will not add a particle to their care or precaution. If the loss of life will not secure caution, forfeiture of property, or imprisonment, for having their limbs broken, will be wholly ineffectual. The only way to protect them is to exact great diligence from those who manage and control these powerful and terrible steam engines on rail roads. They are capable of avoiding and preventing injuries to persons in such cases, and it is their business—their special business^to do so. In no country but this are rail roads allowed, as a general thing, to cross streets or public highways with cars propelled by steam, upon the same surface with the street or highway. In every excepted case the crossing place is guarded with a vigilance never exhibited here. If rail road companies here choose to cross streets upon the same surface, they assume a corresponding responsibility, and must exert a corresponding vigilance. It being the peculiar business of the managers of these steam engines, in view of these increased perils to persons lawfully traveling the streets or highways, to be extremely careful not to injure them, they will not be allowed to neglect their business : they must not be inattentive or absent minded. Human beings, especially in this country, intent upon and absorbed with their business, their cares, their griefs or their pleasures, are not always mindful of the perils of these crossings: they are absent minded, sometimes, and they cannot be made otherwise ; the mind is legitimately engaged on something else. The law then looks to them with more toleration, and “ permits in them a less degree of attention.” In the language of Sir William Jones, before referred to, the construction of their conduct is favorable, and a degree of care from them less than the standard will be sufficient.” They imperil nothing but their lives. If they run against a steam engine, there is little danger of their injuring it. The great number of lives sacrificed at these crossings should warn courts to be careful, before adjudging as matter of law that their negligence was such as justly to forfeit their lives. The care exerted was such as they thought sufficient; such as they trusted their lives upon, and this gave the highest evidence of their sincerity. In some states, in this country, where rail roads cross each other, statutes have been passed requiring each train to make a full stop as it comes to such crossing, before passing over. That, in the judgment of such legislature, is the measure of care which such a case demands. In my judgment our courts have gone quite far enough, in the direction of holding persons injured to be free from negligence, before they can recover. Both principle and sound public policy forbid any extension of the doctrine. It would certainly encourage and promote negligence on the part of the rail road, employees. Feeling that any want of care by the injured would secure impunity to them, and knowing that no man was ever yet injured at a crossing, to whom some want of care could not be imputed, they would naturally and necessarily relax from that keen vigilance imperatively required from persons in their position. Its extension would secure no greater caution on the part of the public.

I have examined the testimony in this case with some care, and I am clearly of opinion it was not a case for a nonsuit, on the question of the negligence of the deceased. A train had just passed down with speed and much noise, and in a manner well calculated to attract the attention of the deceased, and she would then quite naturally think the track was clear, and not be looking for another train immediately. She was no trespasser, was walking where she had a legal right to go, in a public street; and this train stealthily, without ringing a bell or giving any notice, approached her, under circumstances well calculated to avoid her’ observation. Her course was northerly, and the train east of north, but not northeast, almost at her back. In my judgment, this was a proper case for a jury. Questions of fraud and negligence are peculiarly for them, under proper instructions from the court. Such cases have been so regarded by elementary writers. “ All the preceding rules may be diversified to infinity by the circumstances of every particular case, on which circumstances, it is on the continent, the province of a judge appointed by the sovereign, and in England of a jury, finally to decide.” (Jones on Bailment, 122; repeated with approbation in Ang. on Carriers, § 16.) Story, J. says: “What is common or ordinary diligence is more a matter of fact than of law.” “ And in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers as well as the institutions peculiar to the age. (Story on Bailm. § 11.) Judge Johnson says, in the court of appeals, on this subject: “It by no means follows, because there is no conflict in the testimony, that the court is to decide the issue as a question of law. The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the jury and pronounced upon as matter of law.” (Ireland v. Plank Road Co., 3 Kern. 533.) In Connecticut it is held that negligence is so peculiarly a question of fact that it should be left to the jury, even on a conceded state of facts. (19 Conn. Rep. 566. Been v. Housatonic R. R. Co., 2 Smith & Bates’ Am. Rail. Cases, 114. See also Oldfield v. New York and Harlem R. R. Co., 14 N. Y. Rep. 310, a case in many aspects similar to this; Hegan v. 8th Avenue R. R. Co., 15 N. Y. Rep. 380, opinion of Paige, J.; and see Carlton v. Bath, 2 Foster, 559; Whitney v. Lee, 8 Met. 93.)

It was insisted at the bar that the defendant was guilty in this case of gross negligence, and therefore that the plaintiff was entitled to recover, though the deceased was guilty of ordinary negligence. As the facts were presented at the circuit without hearing the defendant’s evidence, there is perhaps some ground to claim that there was evidence of gross negligence in the defendants’ agents. I do not propose to examine this point at length. In such a case there are many dicta, and some authorities, favoring the position of the plaintiff’s counsel. (Rathbun v. Payne, 19 Wend. 401. Hartfield v. Roper, 21 id. 615, 19. Trow v. Vermont Central R. R. Co., 24 Verm. R. 487. Kenoharker v. The Cleveland, Toledo and Cincinnati R. R. Co. 3 Ohio Rep. 172.) Selden, J. says: “What is gross negligence depends upon the particular circumstances of each cased’ (Nolton v. The Western R. R. Co. 15 N. Y. Rep. 449.)

In ordinary cases, negligence, even when gross, is but an omission of duty. It is held, contrary to the text of Sir Wm. Jones, that it is not designed or intentional mischief, though it may be cogent evidence of it. (Story on Bail. §§ 19, 22. Gardner v. Heartt, 3 Den. 236.) But in cases where human life is put in jeopardy, any negligence has been held to be gross. Per Curtis, J. in delivering the opinion of the court: “ When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence.” “And whether the consideration be pecun-iary or otherwise, the personal safety of passengers should not be left to the sport of chance, or the negligence of servants. Any negligence in such cases may well deserve the epithet of gross.” (16 How. U. S. Rep. 469, 474; and see cases there cited of gross negligence; also the cases referred to by Selden, J. in 15 N. Y. Rep. 449.) Is not human life just as sacred outside as inside the cars ? Entitled to the same care when lawfully crossing a public road ? See also Bird v. Holbrook, (4 Bing. 628,) Jordon v. Crump, (8 M. & W. 782,) which hold that a party doing an act on his own land, which may endanger human life, though not illegal, as the setting of spring guns, may be responsible for injuries thus sustained, even to a voluntary trespasser. But it is enough in this case, without passing upon these questions, to say that the learned judge erred in nonsuiting the plaintiff. The question of negligence of the deceased, under the evidence, was for the jury. And for this cause there must be a new trial, with costs to abide the event.

Gould, J.

(dissenting.) The deceased, a child 12 years of age, was walking near where a rail road crossed the street, and at a place where for over three hundred feet of the sidewalk along which she was going, she had been in full sight of a train backing up as slowly as she was walking. For a few seconds, during this time, a down train passed, on the parallel track, (further from her than the track on which the up train was backing up,) passed very rapidly, and was entirely away from the place of the injury before the injury happened. The deceased, in broad daylight, and with the backing train directly before her and in plain sight, stepped on the rail road track directly in front of the car, just as it reached the crossing, and she was run over and killed; a single truck passing over her.

Ebw in this case carelessness—a carelessness so decided and plain that there can be no mistake in so calling it, and a carelessness which not only contributed to, but was the sole cause of the injury'—was plainly proved by the plaintiff’s witnesses. And. where that is proved, there cannot be a recovery.

That, in any given case, the facts being proved, whether those facts constitute carelessness, is a question of law for the court, is too well settled to admit of debate. And that where the facts were clearly proved, a verdict for the plaintiff would be set aside, as against evidence, is as little debatable.

In a case against the Albany pier company for not keeping (as by statute required) a timber along the edge of the dock several inches above the dock’s level, whereby, it was alleged, a team was backed off into the water and lost, it being proved that the teamster Jcnew the state of the dock, and yet backed down to the edge with a load so heavy that his team could not control it, this district general term held the plaintiff could not recover; because the teamster was, as matter of law on those facts, careless.

In Hyatt v. Grant (in this district) a passenger on board of a steamboat was killed by a vessel which came into collision with the steamboat. It was proved that the steamboat could have avoided the collision; and its not doing so, was held careless, as matter of law, and the plaintiff was nonsuited. On review at general term we held the principle of the non-suit clearly right, and that it was not necessary to submit that question to the jury; though we sent back the case, on the ground that the deceased was not careless, or accountable for the carelessness of the steamboat. And we have given other (unreported) decisions to precisely the same purport.

if either these decisions, nor any authoritative decisions in the state, leave this point open to the introduction of the question of comparative negligence, as between the two parties ; and they concede carelessness on the part of the defendant. But no repetition of all the circumstances of particular reported cases—so long as they do not meet this rule—can produce any thing but confusion as to the decision of' the case before us.

[Albany General Term,

March 5, 1860.

Gould, Hogeboom and Peckham, Justices.]

Unless the court are prepared to say that the deceased was not proved to have been at all careless, (in a way that contributed to the injury) it is useless to give details to show that he was not so very careless as Tie might have been; or that the rail road company might have been much more careful than it was; or that a locomotive is a dangerous thing to run against. It is dangerous and Tcnown to be so; and persons should take care not to run against it.

As I understand the opinions, they contain rather plausible excuses for the negligence -of the deceased than any real denial of its proved existence, and they furnish no ground whatever for reversing the decision already given. I am unable to yield my own strong convictions (as to the true rule of the law) to the high regard I have for my brethren and their opinions ; and I feel constrained to dissent from them.

¡New trial granted.  