
    Porter D. Smith, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    
      Negligence — criticism, of the decision of the Appellate Division rendered, on an appeal previously taken — wheriit requires a reversal.
    
    Upon an appeal from a judgment rendered on the trial of an action to recover damages for personal injuries sustained hy the plaintiff in consequence of being struck by one of the defendant’s trains at a highway crossing in the night, the Appellate Division decided that the signals by bell and whistle which the defendant claimed to have given were, as a matter of law, sufficient.
    Upon a subsequent trial, the trial judge charged the jury, over the defendant’s exception, that it was for them to determine, upon a consideration of all the circumstances attending the accident, whether the signals hy bell and whistle which the defendant claimed to have given were adequate. Subsequently, at the request of the defendant’s counsel,, the trial judge charged the proposition decided by the Appellate Division, but added that it was his opinion that the Appellate Division would not have laid down that rule if they had understood fully all the facts in the case. Still later, the court, at .the request of the defendant’s counsel, again charged the proposition laid down by the Appellate Division, without intimating that the Appellate Division misapprehended the facts of the case when it laid down the¡ proposition. The trial judge, however, made no explanation of the final ruling, and did not retract the charge as it had stood up to that time.
    
      Held, that a j udgment entered upon a verdict in favor of the plaintiff should be reversed;
    That the jury could hardly fail to reach the conclusion that, although the abstract proposition was as finally laid down by the trial judge, it was not binding upon them by reason of the misapprehension or mistake of the Appellate Division referred to hy the trial judge.
    Appeal by the defendant, the Lehigh Valley 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 Monroe on the 18th day of May, 1903, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 18th day of May, 1903, denying the. defendant’s motion for a new trial made upon the minutes.
    
      James MeC. Mitehell, Charles J. Pis sell, Martm Carey and Walter P. Coohe, for the appellant.
    
      Thomas Paines, Charles F. Miller, C. C. Werner and G. H. PLcwris, for the respondent.
   Stover, J.:

This case was before this court upon an appeal from a judgment rendered upon a former trial, aind the facts, so far as they are material to the decision of this appeal, were substantially as those now appearing.

The accident occurred in the night time at a crossing near a station of the defendant’s road. The negligence of defendant is predicated upon the absence of signals of an approaching train running at a high rate of speed. It is claimed by the plaintiff that a blinding snow storm prevented his seeing the lights of the approaching train, although, under ordinary conditions, an unobstructed view of" the track for a long distance was open to one looking in the direction from which the train approached at the time of the accident.

It is claimed on behalf of the plaintiff that the evidence as to the giving of the signals was of such conflicting character as to warrant the submission of that question to the jury.

It was held upon the former appeal that if the signals were given as claimed by the defendant, namely, the signals by bell and whistle, that as matter of law they were sufficient, and the judgment there was reversed for the reason that the trial court left it to the jury to say whether those signals, if given, constituted a timely warning or adequate and sufficient protection under the circumstances of the case, and charging that if they did not, then the defendant was guilty of negligence which rendered it liable in that case.

We are of the opinion that the record upon this appeal shows that the instruction to the jury did not adequately convey the proposition stated upon the former appeal. In the charge the trial court stated: “ If a railroad company runs its train at a high rate of speed, it is bound to give due warning of its approach, so that the driver of the wagon may stop and allow it to pass. Such warning must be reasonable and timely, but what is reasonable and timely warning may depend upon many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing to a person crossing the tracks who was vigilant in looking and listening. The speed of a train at a crossing should not be so great as to render useless the warning of its whistle, or bell. This caution is especially applicable when their sound is obstructed by wind and other noises, and when intervening objects, like buildings or cars upon the track, prevent those who are approaching the railroad from seeing coming trains or hearing the sound of the whistle or the ringing of the bell.” And again: “ In crossing highways, while they have the preference in the crossing, they must exercise ordinary care in running their trains, so as to give travelers who are about to cross the tracks timely and reasonable warning of the approaching train. In other words, due and timely warning, so that the traveler who is about to cross the tracks may stop his team and wait until the train passes, or, if the traveler is upon the tracks, that the notice shall be timely and sufficient to enable him, by exercising reasonable vigilance and alertness, to get off the tracks before the train reaches him.”

“ It is for yon to say, under the evidence in this case, whether the bell was rung and the whistle blown on that night, as testified to by the defendant’s witnesses. If you. reach the conclusion that they were, then yon will determine, from the evidence, whether the wind obstructed the sound of the bell and the blowing of the whistle, and whether the ringing of the hell and the blowing of the whistle, under the circumstances, was sufficient to give due and timely warning to the plaintiff and his son. You will determine from the evidence whether the signals that were given were sufficient to have enabled the plaintiff, in the exercise of ordinary care and caution, to have prevented this accident.”

At the close of the charge the defendant’s counsel stated: “If I understood your Honor right, I understood you to charge the jury that if they reached the conclusion that the hell was rung and the whistle was blown, then it is still for them to determine, taking into Consideration the kind of night it was, whether that was a sufficient notice and was due and ordinary care. The Court: Yes, under all the circumstances.” To this an exception was taken.

Defendant’s counsel requested the court to charge “ that if the signals were given, as claimed by the defendant’s witnesses, the jury cannot find that the defendant was negligent for anything that the engineer did or failed to do in the application of the brakes. The Court: I have no hesitancy in charging what I think the law is. The only question in that request is whether the Appellate Division has laid down a rule that I am bound to follow.” Plaintiff’s counsel: “ I would say we are entirely willing to have that rule laid down. The Court: With all due respect to the Appellate judges * * * it seems to me that they could not have fully understood the facts in this case, because * * * the opinion of the court does not lay down any such rule as counsel contends for. But I feel bound to follow their decision, and for that reason I will charge as requested.”

. Further on, defendant’s counsel requested the court to charge as follows: I ask the court to charge that under the conditions surrounding the crossing and the accident in question, as detailed by the witnesses, if the signals were given as claimed by the defendant, they were sufficient as matter of law, and the jury must find a verdict for the defendant of no cause of action. * * * The Court: I do not agree with the rule of law contended for by counsel, but as I remarked to you a moment ago, a majority of the Appellate judges have laid down that rule and it is my duty to follow it. * * * As I said before, I am inclined to think that they could not have understood fully all the facts in this case ; if they, had, they would not have laid down that, rule.” An exception was taken to the remarks.

Finally defendant’s counsel requested: “ Counsel says that it is not sufficiently specific and I will make it so. I ask the court to charge that if the jury find that the signals given as'claimed by the defendant, that is two long and two short blasts of the whistle at or about the whistling post, and the continuous ringing of the bell were given, the jury cannot find that they'were insufficient, improper or inadequate by reason either of the condition of the weather or the location of the defendant’s station buildings or cars, or by reason of any other fact respecting the physical situation at the crossing on the night of the accident. So charged;”

It will be seen that the record states the proposition to be “ So charged ” finally, yet there is no explanation, no retraction, nothing of any character to intimate to the jury that the former portions of the charge were in conflict or in any way at variance with the final proposition as presented to the jury.

The jury might well have determined from the entire proceeding that the proposition of law as contended for by defendant’s counsel and laid down on a former appeal had been given under a. misapprehension, and that the law of the case was-doubtful; and with no explanation of the final ruling, and with no retraction of the charge as it had stood up to that time, the jury could hardly fail to have reached a conclusion that, although the abstract proposition was such as finally laid down, yet it was not binding upon them by reason of the misapprehension or mistake referred to during the discussion at the close of the case.

The defendant was entitled to have the case submitted to the jury with the instruction as to the proposition of law unqualified by the statements made. The final statement still left the original charge unretracted, and all the statements made upon the discussion were left with whatever effect might naturally be produced upon the jury. And the amount of the recovery was so large as to justify a belief that the jury would, n.ot be slow to give plaintiff the benefit of whatever uncertainties there might be in the interpretation of the charge. We are also of the opinion that thevbrdict is excessive, and the amount awarded-not warranted by the evidence.

We do not discuss'the other questions raised in this case, as we think this judgment must be reversed for the reasons aboyé stated.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event upon questions of law and of fact. 
      
      77 App. Div. 43.— [Rep.
     