
    ANNA BARRETT, Plaintiff and Appellant, v. THE THIRD AVENUE RAILROAD COMPANY, Defendants and Respondents.
    The rule is well settled, that questions of negligence depending upon conflicting evidence, or on inferences deducible from circumstances in regard to which there is room for a fair difference of opinion, should be submitted to the jury.
    If the negligence of the defendant contributed to the injury, it is no defence that the negligence of another also contributed to the injury.
    Newly discovered evidence which is merely cumulative will not authorize the granting a new trial; nor where it is sought to impeach a witness.
    Where two city railroad tracks cross each other at an acute angle, and the distance to pass out of danger is sixty-five feet, and the cars are frequently passing such crossing, the mere fact of a car passing such point at the usual rate of speed, of say five miles ,an hour, should of itself be enough to impute negligence. Per Monell, J.
    Prudence, and a due regard for the safety of passengers, should not be balanced by the few seconds of time gained to a company in going too rapidly over a place exposed to so great danger. ‘Per Monell, J.
    In an action by a passenger injured in a collision between a Third and Fourth avenue car, where it appeared that the car of the former road was being driven at a rapid rpte, until it came to the crossing, held evidence of negligence, and that the driver had no right to experiment or venture upon the probability or possibility of crossing and avoiding the collision. Per Monell, J.
    The rule now is, that if upon the whole evidence it would have been proper at the trial to have taken the case from the jury and directed a verdict, then the court will set the verdict aside, if found against what such direction should have been. Per Monell, J.
    If no motion is made at the trial to have a verdict directed, it cannot be urged for the first time on appeal. Per Monell, J.
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This action was for injuries sustained by the plaintiff while riding down-town as a passenger in a Third avenue car, which came into collision on the crossings just below the Cooper Institute with a Harlem Railroad Adams Express freight car going up on the Fourth avenue track.
    The case was tried before Mr. Justice Monell and a jury. The jury found a verdict for plaintiff.
    
      A motion was afterwards made for a new trial upon the case as settled, and upon affidavits before Mr. Justice Jones, who granted the motion, and from this order the present appeal is brought.
    
      Mr. E. F. Hall for appellant.
    “ The law, in respect to the carriers of passengers, holds them to the highest responsibility. They are required to exercise the utmost care, and to adopt all known and tested improvements calculated to secure the safety of. passengers ” (Ingalls v. Bills, 9 Metcalf, 1; Caldwell v. Murphy, 1 Duer, 241).
    “ Passenger-carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons” (Bowen v. The Central R.R. Co., 18 N. Y. Rep., 410; Deyo v. The Central R.R. Co., 34 N. Y. Rep., 9; Meverick v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 381).
    As no evidence was given of any release or receipt of money in satisfaction of damages, or of any written or verbal agreement or understanding to that effect, the Court, after fully stating the law, charged the jury that what had been proven did not amount to a discharge of the Harlem Company, and was not, therefore, a defence to this action. To this the defendant excepted.
    
      “A release of one of several coveiiantors will not discharge his co-covenantors, unless it be a technical release under seal; a parol agreement to release will not have that effect” (De Zeng v. Bailey, 9 Wendell, 336),
    
      “ It is agreed on all hands that in trespass against several, the plaintiff may enter, a nolle prosequi as to one, and that will not discharge the other” (Noke v. Ingham, 1 Wilson’s Reports, 90).
    “ In all cases of actions founded upon tori, which are in their nature joint and several, whether the defendants join or sever in their pleading, the plaintiff may, before or after verdict, enter a nolle prosequi as to some of them and proceed to judgment against the rest.”
    
      Every point as to which there was any possible doubt or dispute, or which could have any bearing on the question of negligence, was left by the court to the j ury.
    
      “ The rule is well settled that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which there is room for fair difference of opinion among intelligent men” (Wolfkiel v. The Sixth Avenue R.R. Co., 38 N. Y. Rep., 49; Ernst v. Hudson River R.R. Co., 35 N. Y. Rep., 9, and 39 N. Y. Rep., 61).
    It is no defense to this a'ction that the negligence of the Harlem Company contributed to bring about the collision.
    “ If the negligence of the defendant contributed to the injury, it is no defense that the negligent act of another contributed thereto, if the injury would not have occurred but for the negligence of the defendant. The defendant, it is manifest, is only made responsible for the result of his own wrong. That wrong produced the injury, and although it would not have occurred but for the wrongful act of another, that circumstance furnishes no excuse for the defendant so far as an innocent injured party is concerned” (Clark v. Eighth Avenue R.R. Co., 36 N. Y. Rep., 138 ; Maverick v. Eighth Avenue R.R. Co., 36 N. Y. Rep., 378; Webster v. Hudson River R.R. Co., 38 N. Y. Rep., 260).
    
      Mr. Clarkson N. Potter for respondents.
    The plaintiff having been paid by, and having discharged, the Harlem Company, has satisfied her claim against the defendants also.
    Satisfaction as to one of two tort-feasors is satisfaction as tc both (Knickerbocker v. Hawes, 8 Cowen, 111; Livingston v. Bishop, 1 Johnson, 293; Brown v. Kencheloe, 3 Caldwell, 192).
    And this, independent of any release.
    “ Nonsuit, release, or other discharge of one trespasser, discharges the rest” (Bacon’s Abridgment, tit. Release, p. 625).
    
      “ The defendants are to be treated as joint-trespassers sued separately; in which case plaintiff can have but one satisfaction. And having either received payment from Hawes, or discharged him, without payment, that act must be considered a satisfaction or release of the damages as to both” (Knickerbocker v. Hawes, 8 Cowen, 111).
    “ While in respect of any of the defendants the right of action is gone or suspended, their joint liability being at an end, the other tortfeasors ’ may avail themselves of this suspension or discharge, whether it be produced by the act of the party or by the operation of law at the instance of the plaintiff” (Robertson v. Smith, 18 Johns., 481).
    The defendants were not in fault as to this accident. The accident was wholly attributable to the gross negligence of the Harlem Company and its driver.
    The pretence that the defendants’ car was driven fast, and recklessly rushed over the crossing, is ingenious in counsel, but fallacious.
    The judge erred in placing before the jury, as “ an important element,” the rate of speed of defendants’ ear before it had arrived within the limits of danger, in his charge that if the jury believed that “ the defendants’ driver saw the large car in time to break up and avoid the collision, he was bound to do so,” and in his remarks upon the “ experiment or venture.”
    The judge erred in refusing to charge that, “if the jury find in this case that the accident was occasioned by gross negligence or carelessness of the Harlem Railroad car-driver, and that ordinary care and prudence on his part would have avoided the collision, and that the defendants’ driver did all he could, under the circumstances, to avoid it, the action cannot be maintained; that if the jury believe the defendants’ driver, finding his car in a position of danger, thought he could avoid the danger by accelerating his speed, and did accelerate it accordingly, and if the facts show that if the Harlem Railroad car had slackened its speed the collision would have been avoided, no blame can be legally attached to the defendants, and they should, have a verdict; that if the jury believe there has been a settlement with the Harlem Railroad Company for the injury claimed in this action, no matter how slight the consideration, this action cannot be maintained against the defendants.”
   McCunn, J.

This action is brought for injuries sustained by the plaintiff while'riding as a passenger'in defendants’ car; a car 'which came in collision on the crossings, just below the Cooper Institute, with a Harlem freight car, going up on the Fourth avenue track.

The trial was had before Mr. Justice Monell and a jury.

A motion was afterwards made for a new' trial upon the case before Mr. Justice Jones', who granted the motion; and now we are sent the record from Special Term to be inspected, and after' such inspection we are to say which of the judges below has committed error.

After as close and fair an examination as some of us are caparble of bestowing upon any subject, we have arrived at the conclusion that the judge at Special Term Avas clearly wrong in setting aside the verdict of the jury, and that consequently the case at circuit was correctly tried, and all questions of law properly disposed of. > ' -

It will be seen, after disposing of all minor points, and after a careful examination of the' facts, that the real question in the case (and I must say I can see but one question) is, whether there was negligencé on the part of the-Third avenue road, and whether the question of such negligence was fairly submitted to be passed upon by the jury. , •

There is no dispute but that at the time of the collision the Third avenue car was going at an unusual rate of speed. Indeed,' this was expressly admitted by the defendants’ counsel on the trial; and there-is just as little doubt but that the Harlem car was going slowly, not trotting nor walking, but a slouching gait, between the two. It is also undisputed that, by the uniform custom and practice of the drivers and conductors of both railroads, the Harlem Company had the right of way.

How, the evidence on the part of the plaintiff goes to show that the Harlem freight car was much nearer the crossings where the accident occurred when they saw each other, than the Third avenue car.

This being so, it was gross negligence on the part of the Third avenue car not to stop until the Harlem car had passed.

Indeed, I fully agree with the plaintiff’s counsel that the accident was the result of a reckless and wicked horse-racing experiment on the part of the Third avenue driver.

Dooley says (and he is a fair witness) that, when he first discovered the Fourth avenue car, he should judge that he was one hundred and fifty or two hundred feet from it. He says that some distance above the crossing the conductor came out and hurried up the drived, who accordingly whipped his horses, and on this point he is not contradicted. On the contrary, he was corroborated by Morrill, by Berner, and by Pruden in his statement, and he says that in his judgment the forward part of the small car was struck.

Indeed, the learned justice who tried the case at circuit left every point as to which there was any possible doubt or dispute, or which could have any bearing on the question of negligence, to the jury; and no rule is better settled than that which requires to have the issues of negligence submitted to the jury, when it depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances in regard to which there is room for fair difference of opinion among intelligent men (Wolfkiel v. The Sixth Avenue R.R. Co., 38 N. Y. Rep., 49; Ernst v. Hudson River R.R. Co., 35 N. Y. Rep., 9, and 39 N. Y. Rep., 61).

It will not be seriously urged that the negligence of the Harlem Company contributed to bring about the collision, and that such negligence is a bar to this action. In discussing this branch of the case, I cannot do better than quote the language of Judge Grover, in the case of Clark v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 138, where he says: “ If the negligence of the defendant contributed to the injury, it is no defence that the negligent act of another contributed thereto, if the injury would not have occurred but for the negligence of the defendant. The defendant, it is manifest, is only made responsible for the result of his own wrong. That wrong produced the injury, and although it would not have occurred but for the wrongful act of another, that circumstance furnishes no excuse for the defendant so far as an innocent party is concerned.”

There is no virtue in the point urged by the defendants to the effect that a new trial, on the ground of surprise, ought to be granted upon the affidavits attached to the case.

The evidence of Pruden was offered in rebuttal, and the defendants had no right to open the question again if they had a thousand witnesses present to contradict Pruden when he left the 'stand. The new evidence, therefore, for the introduction of ■which a new trial is sought, is merely cumulative, consequently there is no law for the granting of a new trial on the grounds presented (People v. Superior Court, 10 Wen., 285).

Though a witness proves a fact to the surprise of the other party, and though by mistake he was not cross-examined, nor was evidence given to contradict him or any observation made on his evidence, the court will not grant a new trial. Such was the rule held by Lord Ellenborough in Bell v. Thompson (2 Chitty’s Rep., 194).

Indeed, a verdict is never set aside to give the party an opportunity of impeaching the credit of witnesses sworn at a former trial (Bunn v. Hoyt, 8 John., 255).

And to set aside a verdict when the testimony is conflicting and the question doubtful, would be not an exercise of discretion, but a gross usurpation of power (Cothran v. Collins, 29 How. Pr. Rep., 155).

I fully concur with the learned justice who tried the cause where he says that “ the law in respect to tire carriers of passengers holds them to the highest responsibility. They are required to exercise the utmost care, and to adopt all known and tested improvements calculated to secure the 'safety of passengers.” Story says : “Passenger-carriers bind themselves to carry safely those whom they take into their coaches, as far as human care. and foresight will go, that is, for the utmost care and diligence of very cautious persons.” And this- is the rule laid down in Bowen v. The Central R.R. Co., 18 N. Y. Rep., 410; Maverick v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 381.

There is no virtue in the point raised by the defendants to the effect that the plaintiff having been paid by the Harlem company something, such payment has satisfied the claim against the defendants. ,

The answer to such a proposition is that no evidence was given of any release or receipt of money in satisfaction of damages, or of any written or verbal agreement or understanding to that effect. The court, after fully stating the law, charged the jury that what had been proven did not amount to a discharge of the Harlem .Company, and was not therefore a defence to this action, and in this we fully concur. The rule is-well settled that a release of one of several covenanters will not discharge his eo-covenanters, unless it be a technical release under seal; a parol agreement to release will not have that effect (De Zeng v. Bailey, 8 Wendell, 336).

The order at Special Term granting a new trial should be reversed, and the judgment entered below ordered to stand.

Monell, J.

(concurring). Was the verdict in this case against the clear weight of the evidence % The theory of the defendants, were it the only theory in the case, and the theory upon which the case ought to have been disposed of, would give an affirmative answer to the inquiry.

The defendants’ theory is that the collision,, so far as they were concerned, was unavoidable. They claim that, at the point where the car of the Harlem Company was first discovered by the driver of the defendants’ car, it was too late to brake up their car, or to avoid the collision. And they" claim that the evidence, and their admission at the trial, go no further than to establish that the accelerated speed of the horses was" to carry the car out of danger, and not into it.

But, I think, the error of the defendants’ counsel is in claiming that there was no proof of negligence on the part of the defendants, and no want of care before the ear reaehed the point of danger.

Leaving out of view that there was evidence which would warrant the inference that the driver of the defendants’ car did, or, had he been watchful and attentive to his ..duty, could have seen the approaching car on the other track in season to have escaped the danger (Wolfkiel v. Sixth Av. R.R. Co., 38 N. Y. R., 49, 51), there is much evidence which, although contradicted, was proper for the consideration of the jury, and, if credited by them, sufficient in-its nature to predicate-a verdict upon.

At the point wliere the collision occurred, the tracks of the two railroads cross each other at a very acute angle. The distance between the extreme points of danger, as shown at the trial, is about sixty-five feet. That distance it was necessary to traverse on either track to pass out of danger, if the other track was being or likely to be used at the same time. The grade at the crossing is ascending from Fifth to Sixth street. The defendants’ car was passing down upon a descending grade, and the Harlem car up upon an ascending grade. The respective cars-were of different size and weight. The defendants’ car was the smaller and lighter.

It was well known that at the crossing is a, somewhat crowded part of the city. The business and traffic of the Bowery passes, at that point, into the Third and Fourth avenues. It is also well known that several hundred cars daily pass the crossing upon either track, the average being, probably, one in each three to four minutes until nine or ten at night. The drivers of the several cars, upon the one as well as upon the other, must be presumed to have known the condition of the thoroughfare, the frequent passing of cars, and the distance (by estimation, at least) between the points of danger at the crossing. It is not, therefore, too much to say that, in such a condition of things, a little more than ordinary care, it seems to me, ought to he exercised by'each of these railroad companies. And it is not, perhaps, going too iar to say that the mere fact of a car passing such a point at the usual rate of speed, of say five miles an hoar, in the night, when it is difficult to see far, should of itself be enough to impute negligence. Prudence, and a due regard for the safety of passengers, should not be balanced by the few seconds of time gained to a company, in going too rapidly over a place exposed to so great danger.

How there was evidence that the defendants’ car, for some considerable time before it reached the crossing, was going at a rapid rate of speed; that the driver was told by the conductor to “ hurry up,” that he was behind time. The rapid and unusual rate of speed of the horses of the defendants’ car was testified to by several witnesses. One witness (Dooley) was on the front platform, and said he saw the Harlem car when the defendants’ car was from one hundred and fifty to two hundred feet from it, and that when within fifteen to twenty feet he jumped off. Another witness (Eemer) said the Harlem car was fifteen feet from the crossing when the defendants’ car was one hundred feet above, “ coming pretty fast on a down grade.” Another witness (Pruden) said the Harlem car was twenty-five or thirty feet and the defendants’ car one hundred and twenty-four or ofie hundred and twenty-five feet from the place of collision when he first saw them. It was not disputed that the Harlem car was going at a slow rate of speed.

Much of this evidence was contradicted. The driver of the defendants’ car stated that he was only about thirty feet from the Harlem car when he first saw it; that his horses had just entered on the Harlem track; that he then whipped up his horses, hoping to avoid a collision, it being too late to retreat and more dangerous to stop. He said, until he saw the Harlem car, he was going at his usual rate of speed, and in this he was corroborated by other witnesses.

Among other things submitted to the jury was this conflicting evidence as to the speed at which the defendants’ car was being driven before it' had reached the crossing, under the instruction that, “if the ear was driven at an unusual rate of speed, and by reason of such rapid speed the collision occurred,” the defendants yrere liable. There was no assumption in this instruction of a fact not proven, and we have the right, if it were necessary, to presume that the jury founded their verdict solely upon their belief that, for some time previous to reaching the crossing, the defendants’ horses had been driven at an unusually rapid and consequently dangerous rate of speed, which, they were told by the court, if it produced the collision; was negligence. The evidence to support such a conclusion was abundant if the jury believed it, and their verdict proves that they did believe it.

From the fact that, at the time of the collision, the defendants’ car had passed over eighty-nine feet of the whole distance between the possible points of danger, the defendants insisted that, in the position of the cars at the point of collision, there was time, at the usual rate of speed of the respective cars, for the defendants’ car to have passed if the Harlem car had not increased its speed. The diagrams and the proof undoubtedly show that the defendants’ car was within a few feet of being over the Harlem track, and that fact might tend to establish that it had first entered upon the crossing, were it not that the rapid rate at which some of the witnesses say it was going would enable it to get over the greater space in the shorter time. I am not able to see any thing in these facts going to prove that the driver of the defendants’ car could not, and therefore did not, see the Harlem car until too late to 'escape. If there had been no evidence that he was driving rapidly, and the proof had been that the speed .of the two cars was alike, then the position of the defendants’ car would justify the inference that it was first upon the crossing, and, having proceeded until the other car came in view, it was then too late to stop with safety. But the evidence is hostile to any such inference; and if it was true that the defendants’ car was going very fast for some time before it arrived at the crossing, its having reached the opposite side of the Harlem track when the cars collided is accounted for; and, therefore, whether the driver saw the Harlem car in season to stop is not material upon the question of negligence. The negligence was in driving too fast for safety at such a place. The negligence of the defendants being the want of ordinary care to avoid the collision, it was competent for the jury to say that such negligence was the too rapid driving of the homes previous to as well as at the time of the collision; and the verdict being general, we cannot say that they did not adopt that theory.

Indeed, a careful reading of the whole evidence will, I think, produce the belief that proper care on the part of the driver of the defendants’ car in approaching and driving upon and across the other track would have saved the plaintiff and her fellow-passengers from injury; and it will be doing no injustice to the defendants to say that there was evidence sufficient to justify the jury in finding that the driver saw the large car in time to brake up and avoid the collision, and was bound to do so; and, in the language of the judge, “ he had no right to experiment or venture on the probability or possibility of crossing and avoiding the collision.”

Any concurring negligence on the part of the Harlem Company, it is conceded, will not defeat a recovery against the defendants.

The rule now is, that if upon the whole evidence it would have been proper at the trial to have taken the case from the jury and directed a.verdict, then the Court will set the verdict aside, if found against what such direction should have been (Suydam v. Grand Street, &c., R.R. Co., 41 Barb., 375). The judge who tries the case is best able to judge .of the weight and effect to be given to evidence; and if one of the parties considers it so preponderating in his favor that a verdict against him ought not to stand, it should be his duty to move at the trial to have the verdict directed in his favor, and should not afterward be allowed to raise any question as to the sufficiency of the evidence, for the first time, on a motion for a new trial, for the same reason that it is too late to object on appeal that contested questions of fact should have been passed upon by the jury.

But I am satisfied that it would have been clearly erroneous to have taken this case from the jury, and therefore the verdict must be allowed to stand.

Approving of the views expressed by my associate upon the other questions raised by the defendants, I concur in reversing the order appealed from, and in directing judgment to'be entered on the verdict.  