
    Owen and Lugar, Plaintiffs and Respondents, v. The Hudson River Railroad Co., Defendants and Appellants.
    1. In an action, by the owners of an omnibus or stage, against a railroad company, to recover damages for an injury to the stage, resulting from a collision between it and a car of the company, while the car is being drawn by horse-power-; which collision is alleged, by the plaintiffs, to have been caused by the negligence of the company’s servants; and which collision is alleged, by the defendants, to have been caused by the sole, or concurring negligence of the driver of the stage; and there is evidence tending to show negligence of both parties, which concurred to produce the injury; The true rule to be stated to the jury is, that if the collision and injury were caused by the concurring negligence of both parties, neither can recover against the other, and the defendants are entitled to a verdict.
    2. In such a case, it is erroneous to instruct the jury, that if they “ believed that the brakes of the car were not in good or sufficient working order, so that they were inefficient for the purpose of checking the progress of the car, and if they shall be satisfied that the driver of the car had time enough, after he discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order, then the plaintiffs will be entitled to recover, notwithstanding the plaintiffs’ driver was guilty of imprudence or carelessness in getting into such a position.”
    3. "When the negligence of the company consists, in not having their car furnished with a suitable and efficient brake, in good working order; and although, but for such negligence, there might have been no collision and no injury, notwithstanding the plaintiffs were negligent; yet if the plaintiffs were, at the time, in fact, negligent, and if their negligence concurred with the defendants’ negligence, to produce the injury, such facts present the case of an injury caused by the concurring negligence of both parties, and neither can maintain an action against the other, to recover any damages, resulting from it.
    4. It would seem, that when one of two persons, by his own negligence, is unexpectedly placed in a position of danger, from which he cannot be extricated uninjured, without ordinary care, and a reasonable use by the other of the mean's, at the time, at his command, to prevent an injury to the former; and the latter sees the former, and the position in which he is placed, in time to prevent the injury, by the exercise of ordinary care, and by reasonable efforts on his part, in the use of such means, and he fails to exercise such care and make such efforts, and by reason thereof, the former is injured, the latter is liable. (See note at the foot of the case.)
    5. In a case of such peculiar and extreme circumstances, the negligence of the defendant is proximate, and that of the plaintiff remote, and the injury, in judgment of law, is imputable solely to the party who had it entirely within his power to prevent it, by ordinary care in the use of the means then at his command to avoid it, but who failed to use such care, although seeing and knowing that the other party could not, at .the time, by any act on his part, escape the threatened injury.
    (Before Duer, Ch. J., and Hoffman, and Pierrepont, J. J.)
    Heard, Jan, 6;
    decided, Jan. 30, 1858.
    This is an appeal by the defendants, from a judgment, entered on the verdict of a jury, in favor of the plaintiffs, for $1187.73. The action was tried in May, 1856, before Mr. Justice Slosson and a jury.
    Daniel Qwen and Jeremiah Gr. Lugar, the plaintiffs, as partners, owned and run a line of stage omnibuses through the Tenth Avenue, in New York City, in which avenue the track of the road of The Hudson River Railroad Company, (the defendants,) is laid.
    This action is brought to recover damages which the plaintiffs sustained, by a collision between one of their stages and the defendants’ cars, on the 23d of February, 1853, while both were going up the Tenth Avenue, near 24th street.
    It was also brought to recover damages sustained by them, from a collision between another of their omnibuses and the defendants’ cars, on the 20th of July, 1853, near 26th street, in Tenth Avenue, when the cars and stage were going in opposite directions.
    Both collisions occurred in broad daylight, and the avenue extends in a straight direction, both north and south of the place of collision, and objects could be seen in it, in either direction, to the distance of at least half a mile from the place of either collision.
    The plaintiffs sought to recover, on the ground that each collision was caused by the negligence of the defendants and their servants, and without any fault or negligence of the plaintiffs or their servants. When the plaintiffs rested, the defendants’ coun • sel moved for a nonsuit, on the grounds:—
    
      “ First.—That it appeared that the plaintiffs were guilty of negligence, which contributed to the accident.
    “ Second.—That it also appeared that the defendants were not guilty of any negligence which contributed to the accident.
    “ The Judge refused the nonsuit, and the defendants’ counsel excepted.”
    The evidence given before the plaintiffs rested, and the motion for a nonsuit was made, tended to show that the driver of each stage was negligent, in getting into such a position, that a collision between it and the defendants’ cars occurred.
    The evidence, given before the testimony was closed, tended to show, that at the time of the collision, the brakes of the defendants’ cars were not in good working order, and that if they had been, the drivers of their cars, after they saw there was danger of a collision, might have arrested their progress and prevented a collision, and that the want of sufficient brakes, in good working order, was the only negligence on the part of the defendants.
    “ The Judge charged the jury, that the plaintiffs in this case could not recover, if the carelessness of their servant contributed directly to the accident; but the Judge also stated, that that rule was subject to this qualificationIf the jury believed that the brakes of the car were not in good, or sufficient, working order, so that they were inefficient for the purpose of checking the progress of the cars; and if you shall be satisfied that the drivers of the cars had time enough, after they discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order; then the plaintiffs will be entitled to recover; notwithstanding the plaintiffs’ driver was guilty of imprudence or carelessness in getting into such a position. To which said qualifications, the defendant’s counsel then and there excepted.”
    The other parts of the charge, not having been called in question on the appeal, are omitted.
    The jury found a verdict for the plaintiffs. From the judgment entered therein, the present appeal was taken by the defendants.
    
      William Fullerton, for the appellants.
    
      The charge of the Judge was erroneous. The rule, as first stated, was correct, and should have been permitted to stand, without the qualification to which it was made subject.
    The obligation to use ordinary care is incumbent on a party who has suffered from a collision. The performance of this duty on his part, and the breach of the corresponding duty by the party sued, must concur, to entitle the plaintiff to damages sustained in a collision.
    The general rule, resulting from the authorities, is, that a party suffering injury on a highway, in a collision with a railroad train, is entitled to damages, on proof, both of a want of ordinary care on its part, and the exercise of the same degree of care on his own. And if he was himself chargeable with a Want of ordinary care, and thereby contributed to the injury, he is without remedy. This rule is without qualification. (March v. Concord, R. R. 9 Foster, 43; Moore v. Central R. R., 4 Zabris. 268, 824; Runyon V. Central R. R., 1 Dutcher, 556; Herring v. Wil. & Bal. R. R., 10 Iredell, 402; Spencer v. Utica & Schen. R. R., 5 Barb. 337; Sheffield v. Roch. & Syr. R. R., 21 Barb. 339 ; Haring v. N.Y. & E. R. R., 13 Barb. 9; Neal v. Giliet, 23 Conn. 437.)
    
      John Graham, for the respondents.
    The qualification of the Court, in charging the jury, to the proposition as to the plaintiffs not being entitled to recover, if chargeable with negligence, was correct.
    Both accidents amounted to crassissima negligentia, as against the defendants. The charge is directly within the principle of Carroll’s case, (1 Duer, 571,) and of Cook v. The Champ. Transp. Co., (1 Den., 91.)
    Suppose the plaintiffs’ stages to have been standing upon the tracks of the defendants’ road, would that justify the defendants in injuring them, especially when, as in this case, it resulted from gross negligence on the part of the defendants’ agents or servants? In trying to clear the tracks, the plaintiffs are in a more favorable position than if the stages had stood still upon them; and shall they not have the benefit of the same principle ?
    No matter how much exposed the plaintiffs’ stages were to danger or injury—that will not excuse the defendants from the consequences of gross neglect. With reference to this, the plaintiffs were under no obligation to choose a position more or less liable to peril. It is evident, that if there had been no imprudence or carelessness on the part of the plaintiffs’ driver in getting upon the track, that the defendants’ gross negligence would still have existed, and, no doubt, have produced the same, or results equally serious as those it did. Eor every legal purpose, the horses might as well have been without bridles or reins—as the cars without brakes. Brakes will check the progress of the cars, when bridles might fail in restraining the horses. In the use of this means of conveyance, it is no more reprehensible to be without the one than the other.
    The charge of the Court was equivalent to saying, that a want of ordinary prudence on the plaintiffs’ part would be a fair offset to the same delinquency on the part of the defendants; but that if the collisions in question could not have been avoided by the exercise of ordinary care or prudence by the plaintiffs, or their agents or servants, the defendants were liable. This is undoubted and familiar law. (Butterfield v. Forrester, 11 East. 60; Bridge v. The Grand Junction R. R. Co., 13 Mees, and W. 244; Davies v. Munn, 10 id. 546.)
   By the Court. Hoffman, J.

It has become a settled axiom in our State, that if the negligence of a plaintiff who complains of an injury has contributed to produce it, he is not entitled to recover. (Rathbun v. Payne, 19 Wendell, 399; Collins v. The Albany & Sch. R. R. Co., 12 Barbour, 492 ; Munger v. Tonawanda R. R. Co., 4 Comstock, 349 ; 5 Denio, 255.)

This rule is modified by another, which is thus stated by Chief-Justice Duer, in Johnson v. The Hudson River R. R. Co., (5 Duer, 27.) “ As the plaintiff in the action is not allowed to recover, notwithstanding the clearest proof of the negligence of the defendants, when it is also proved that his own negligence directly contributed to the accident, so the defendant is not shielded from a recovery, when it appears that but for his own subsequent negligence the accident would not have occurred; that is, when it appears that his own negligence was the sole proximate cause."

The doctrine thus stated was applied by the late Chief-Justice in the case of Williams v. The N. Y. & Harlem R. R. Co., tried December 14th, 1852. The law, as laid down, in his charge, was affirmed at the General Term of this Court, (February 11th, 1854,) and by the Court of Appeals.

After stating the general rules, as to the necessity of finding the defendants guilty of negligence; and if so, then, next, whether the party injured had been negligent on his part; the learned Judge proceeded—“ If the deceased was guilty of negligence in attempting to cross the track, or in jumping out of the wagon, still, if when he was on the ground, the driver could have stopped the car before it went over him, the plaintiff was entitled to recover.”

To understand this, it is sufficient to observe, that the deceased was thrown from a wagon and run over by a car of the defendants, and that there was no little testimony to show that the car was driven at a great rate of speed, and that the driver made no attempt to check it when he discovered the situation of the party, and that he could have stopped the car so as to have avoided the accident.

This, then, was the case of a wilful neglect of ordinary means of avoiding the accident at the period of its occurrence. Had the driver of the car, in the present instance, wholly neglected to apply the brakes, the cause would have been similar.

But if the ruling of the learned Judge here is right, the most remote neglect of the company, or its agents, in the construction of its car, road, or equipment, would make them liable, whatever might be the fault of the other party. If they are responsible, because of the inefficiency of the brakes, they would be so for any deficiency or imperfection, no matter how far back it might be traced, which could be deemed to have contributed to the event. Indeed, it would, in principle, go far to give as entire protection to a traveller, or party grossly in fault himself, and to place him in the same position, as one who is wholly free from fault, and who has a guaranty for even these latent defects which ordinary diligence has failed to discover. See the cases collected in the valuable Treatise of Judge Redfield on Railways, p. 325, and notes.

Another exception was, to the charge as to the rule of damages. No point has been made by the defendants’ counsel as to this, nor was any argued. We omit, therefore, to consider it.

We think that there was error in the charge, and that there must he a new trial, with costs to abide the event.

Ordered accordingly. 
      
       In the case of Button, administratrix of Button, deceased, v. The Hudson River Railroad, Company, decided by the Court of Appeals, in December, 1858, rules were declared which seem to cover the case of Owen & Lugar v. The same Company.
      
      Margaret Button, as administratrix of her deceased husband, sued the company, on the allegation that the death of the deceased was caused by the negligence of the defendants, without fault on Ms part. The deceased, when first discovered, after he was injured, was found lying directly across the track, with his head on one rail • and his feet on the other. How he came there, or how long he had been there, no witness was able to state. • All that was proved was, that he had been drinking at an oyster saloon in the vicinity, and had left the saloon but a few minutes before he was found in this position.
      The opimon of Mr. Justice Harris, of the Court of Appeals (which is understood to have been delivered as the opimon of that Court) affirms the following propositions :—
      1st. Such testimony, alone, warrants no other finding than that it was the fault of the deceased that he was lying on the track in the position in which he was first discovered, and that he was not seen in time to stop the car before it reached him. On such a state of facts, the deceased was the cause of his own death, and the defendants were blameless, and, of course, are not liable.
      2d. When an injury is produced by the concurring negligence of both parties, and the negligence of the plaintiff is as truly a proximate cause of the loss as that of the defendant, there can be no recovery, although the negligence of the defendant may be greater in degree than that of the plaintiff. (Lowell v. The General Steam Navigation Company, 6 Ellis & B. 195, and 32 Eng. Law and Equity R. 158; Trow v. The Vermont Central Railroad Company, 24th Verm. 481; Hawkins v. Cooper, 8 Carr. & P. 4!3; Woolf v. Beard. 8 Carr & P. SIS.)
      
      3d. “ Where the negligence of the plaintiff is proximate, and that of the defendant remote, no action can be sustained. In such a case, the plaintiff himself is the immediate cause of the loss. This rule embraces all that class of eases where, at the time of the injury, the plaintiff was chargeable with a want of proper care. On the other hand, where the negligence of the defendant is proximate, and that of the plaintiff remote, the action may be sustained. The question, then, is, whether, it being concluded the plaintiff was not without fault, the defendant might, by the exercise of ordinary care and prudence at the time of the injury, have avoided it.” (Cerwhaeker v. The Cleveland, Columbus and Cincinnati Railroad Company, 3 Ohio 112, K S).
      One man cannot, by Ms own negligence, cast upon another the nécessity of exercising extraordinary care. {Lowell v. The Steam Navigation Company, supra.)
      
      4th. To entitle the plaintiff to recover, it was necessary to prove, that prior to the injury of the deceased, he was seen on the track by the driver.of the car in time to have enabled the driver, by the exercise of ordinary care, with the means then at his command, to arrest the progress of the car, and prevent the injury.—Rep.
     