
    Albert Berzevizy, as Administrator, etc., of Mary Berzevizy, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Negligence—woman hilled at a private railroad crossing—contributory negligence — the jury cannot disregard the testimony of a witness, although his interest may affect his credibility.
    
    Proof that a woman forty-three years of age, enjoying good health arid eyesight, walked, soon after, dusk, along a path leading over railroad tracks, when it was light enough for a person behind her to see her at a distance of twenty or thirty yards, her view of an approaching engine, having its headlight lighted but giving no signals, being practically unobstructed; that she appeared to stop a mopient and look up and down the track, then stepped upon it and was instantly struck by the engine and killed, is evidence that she did not exercise that care which the law requires of one who uses a private crossing.
    On the trial of an action brought to recover damages for personal injuries resulting from the alleged negligence of the defendant, it is erroneous for the court to charge the jury that they “have the right and may take the liberty of disregarding the witnesses of the defendant, if they consider them interested, even though they be not contradicted or impeached,” as the jury are never justified in disregarding the testimony of any witness, but, in determining the credibility to be given to a witness, have a right to consider his interest in the controversy or in' the decision of the question of fact submitted to the jury.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of October, 1896, upon 'the verdict of a jury,"and also from an order entered in said clerk’s office on the'2d day of October, 1896, denying the defendant’s' motion' for a. new 'trial made upon the minutes.
    
      Hammond Odell and Hamilton Odell, for the appellant.
    
      George P. Nock, for the respondent.
   Ingraham, J.:

We do not think that there is any evidence to justify a finding of the jury that the plaintiff’s intestate was free from contributory negligence. The plaintiff’s intestate,' a -woman forty-two or forty-three years of age, in good' health, - was killed by a train of the defendant’s road as she was attempting to cross the track, upon the evening of the 12th day of May, 1893. She. was a resident of New York, on a visit to a friend at-Néwark, N. J., and left the house of "this friend about seven o’clock in the evening to return to New York. The track of the defendant’s road running from East Orange to Newark, N. J., is a straight road with no curves. There is a path which crosses this road about'three feet■or three and one-half feet wide, which is used by persons going from East Orange to Newark as a short cut to avoid going through the street. There-was evidence tending.to show that the plaintiff’s intestate, while walking along this path toward the approaching train, stepped upon the track, when the- train, running at a rate of speed of seventeen .or eighteen miles an hour, struck her. A'witness who was ■behind her upon the path says : “ I saw her look up and down the track! The instant the train came'—I was to go. on the track myself-^- she came on the track and it hither. * ■ *" * The first thing I saw was when she stopped at the track- and looked- up and down and attempted to cross the track. 'She was going the same way that I was.-. She was ahead of me. There was no fence there. After--1 saw her stop at the track and look up and down the track, she- started to cross. The train came from Orange bound for Newark.” The: witness further testified that he did.not-hear any'bell rung, or any signal of any kind from the train that, night, and 'that he did not hear the train until it got where the" woman was. ■ Then they blew a short, shrill -whistle the moment they struck her. - The witness further .testified that “it was not daylight;' it'was a little bit misty.” The witness having testified- that he was able to see her (the plaintiff’s intestate) for a distance of twenty to thirty yards, and noticed that she looked up and down the track before attempting to cross, it is quite clear that it ■ was not so dark but that one could see without difficulty an approaching train, especially as it appears by uncontradicted evidence that the headlight of the train was lighted and burning brightly. It appeared that about thirty yards away from where the woman was hurt there was a bridge over the railroad, and that the abutment of the bridge would prevent an engineer upon the train from seeing a person approaching the track along this path until the person came quite near the track. It would not, however, prevent a person, just before going upon the track, from seeing the approaching train. There were no buildings in the immediate neighborhood of this path, the land at this point, upon each side of the track, apparently being unoccupied. It seems- to me that this undisputed evidence shows that the plaintiff’s intestate was guilty of contributory negligence, and that the injury was occasioned solely by such negligence. She was approaching a railroad track by a private path, where trains were in the habit of constantly passing.. It was between seven and eight o’clock in the evening, after dusk. The train was approaching with a headlight brightly burning, and the plaintiff’s intestate was walking toward the train, and her position was such that if she had stopped before attempting to. go upon the track and looked she must have seen the approaching train, and notwithstanding that fact, when she arrived at the edge of the track upon which the train was approaching, and which must have been but a short distance from her, she came near to or stepped upon the track and was struck by the locomotive. Thus she proceeded to cross the track in front of this approaching locomotive. The witness, who was twenty or thirty yards from her, says that she looked up and down before she stepped upon the track, but if she did make the motion as if she looked, it follows as a necessary conclusion that she either really did not look in the direction of this approaching train, because if she had she must have seen it, or if she did look and did see it, it was clearly negligence to cross in front of it. There is no evidence that she was blind or had defective eyesight; no evidence that anything intervened between her and the approaching train that would prevent her from seeing, or that her attention was. distrae ted so that it could, have escaped her attention, and the conclusion is irresistible that if she looked she did see. the train. ■

. The duskiness of the night could not prevent the plaintiff’s intestate from seeing the headlight of this approaching train. To say that, under- such circumstances, a finding of a jury, that the plaintiff did look and could not see the train is supported by evidence, would be deliberately shutting our eyes to the clear and necessary inference to be drawn from undisputed facts where there is absolutely no evidence that such inference is -not well founded. The only witness produced who saw this accident placed the plaintiff’s intestate upon - the edge of the track at the time when this train was almost upon her, with an unobstructed view between her and the approaching train, with nothing to prevent her from seeing it, Avith no necessity for her either to approach so close to the train or to place herself upon the track in front of it as to endanger her life, and yet, with the train, as it must have been, in full view, she deliberately placed herself in such a position that it struck her. The only inference that can be - drawn from these facts, is that -the plaintiff’s intestate either did not look and was negligent, or, if. she did look, and, notwithstanding the approach of the train, attempted to cross the track in front of it, she took the risk of being injured.

We are bound to apply the necessary inferences that arise from facts proved, and it seems to- me quite clear that no other inference than that above stated is possible. “ The-duty of eA^ery individual using a public highway at railway crossings to exercise that degree of care and prudence called for by the peculiar circumstances, and proportioned to the danger of injury from .a collision with a'passing train of cars — such care and foresight as men of ordinary prudence. ■ would use if placed in the same situation — is well understood and authoritatively settled. This ordinary care involves the vigilant use, by the traveler, of his senses, in approaching the place of danger, . and that he should look in every direction from which danger may be apprehended, and at the same time attentively listen for any signals or evidences of an approaching train.- If there is any omission of duty or' precaution in this respect, and he sustains injury to' his person or property, caused AAholly or in part by such want of care, he must bear the loss” (Weber v. N. Y. Cen. & H. R. R. R. Co., 58 N. Y. 454); and a person using a private crossing is required to assume a greater burden of care than would be necessary where the crossing is public and the duties and responsibilities of the railroad company correspondingly lessened. (4 Am. & Eng. Ency. of Law, 915; O'Connor v. Boston, etc., R. R. Corp., 135 Mass. 352; Sutton v. N. Y. Cen. & H. R. R. R. Co., 66 N. Y. 243 ; Byrne v. N. Y. Cen. & H. R. R. R. Co., 104 id. 362; Barry v. N. Y. Cen. & H. R. R. R. Co., 92 id. 289.)

We also think that it was error for the court to charge, at the request of the plaintiff, “ that the jury have the right and may take the liberty of disregarding the witnesses of the defendant, if they consider them interested, even though they be not contradicted or impeached,” to which the defendant excepted. • This instruction was much too broad. The criterion fixed by the court was as to whether the jury considered a witness interested, not whether a witness was so interested in' the result as. to affect the weight to be given to his testimony. A jury is never justified in disregarding the testimony of witnesses produced by a party and sworn upon the trial. 'All of the testimony in the case is to be considered; and while the jury, in determining the credibility to be given to a witness, may consider his interest in the controversy, or in the decision of the question of fact submitted to the jury, to say that a jury has the liberty of disregarding the testimony of' a witness, if they considered such witness interested, gives to a jury a discretion to refuse to consider evidence which is competent in the case, and which they are bound to consider in arriving at their verdict. That the credibility of a witness is for the jury where the testimony given by such witness is contradicted, or where he is impeached or so interested in the result that his interest may affect his. testimony, is one thing, but to say that the jury are entitled to disregard Competent evidence in the case is quite another.

We think, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson and Parker, JJ., concurred ; Rumsey and Williams, JJ., concurred on last ground stated in opinion.

Judgment reversed, new trial ordered, costs to appellant to abide event.  