
    Martha Ernst, Executrix, etc., Appellant, v. The Hudson River Railroad Company, Respondent.
    There is no rule of law requiring a railroad company to keep a flag-man at the crossing of a public street by its track, to give to passers-by notice of the approach of trains.
    The company have the right to run their trains carefully and prudently on their track; so as not, in the exercise of their own right, to injure others in the prudent exercise of their rights. But, beyond this, it cannot be said, that the company is also bound to place a flag-man at the crossings of the road.
    The company, for their own convenience, may elect to place a flag-man at certain crossings, and, by establishing a practice of that kind, they may make a law binding upon themselves.
    Where, by such voluntary and continued practice, it has become notoriously public, that a flag-man is placed at such crossing to give notice of the approach of trains, then to withdraw such flag-man without notice, may become an act of negligence on the part of the company, for which they would be liable.
    A i ravelcr approaching a railroad track is required to use his eyes and ears so far as there is opportunity, if he would avoid the imputation of negligence, even though the company may neglect the proper signals.
   Clerke, J.

This action was brdught to recover damages against the defendant for negligently causing the death of the plaintiff's testator, and has been tried four times. Upon the first trial, the plaintiff was nonsuited; a new trial having been granted, the cause was tried a second time, and the plaintiff recovered $2,500, upon which judgment was entered. This was reversed in the Court of Appeals, and a new trial ordered. On the third trial, the plaintiff was non-suited in accordance with the decision of this court. This was affirmed at the General Term; but, on a second appeal to this court, the judgment of the Supreme Court was reversed, and a new trial ordered. On the fourth trial, the plaintiff had a verdict for $5,000. The judgment upon this verdict having been affirmed at the General Term, the defendant appeals to this court.

The judge at the trial charged the jury, that the first question which they were to consider was, whether the defend ant was guilty of negligence which caused the death of the plaintiff’s testator. On this question there was conflicting evidence. The plaintiff’s witnesses, and some of the defendant’s, testified, that they did not hear the hell or whistle, previous to the accident; while the engineer, fireman, and track master, testified, that these signals were given. So that this question, relative to the defendant’s negligence, was properly left to the jury. The judge added, if they should come to the conclusion, that the defendant was guilty of negligence, then the question would be, was the deceased free from negligence which contributed to the accident % The defendant’s counsel asked the court to charge, if the deceased, by the use of his ordinary faculties, could have discovered the train, and could have avoided the injury, he was guilty of negligence, and could not recover; and this the court accordingly charged.

The counsel for the defendant moved, at the conclusion of the plaintiff’s evidence, for a nonsuit, on the ground—first,, that there was no proof of negligence on the part of the defendant; and, second, that it appeared that the negligence, or want of care, of the plaintiff’s testator, contributed to the injury, The motion was" denied. It was, however, renewed at the close of the whole evidence, and was then, also, denied. As I have already intimated, there can be no doubt, that the question regarding the defendant’s negligence was properly left to the jury. The second ground of the motion for the nonsuit is more plausible. On the legal proposition which this latter question involves, I cannot discover any difference of opinion between any of the judges by whom the case has been considered. All seemed to assume, at the trial at the General Term, and in the Court of Appeals, that the plaintiff must make but a clear, affirmative case of negligence on the part of the defendant, unaccompanied by any negligence on the part of the deceased, that contributed to the injury; and the question now is, was the negligence of the deceased so obvious and uncontradicted by the evidence, as that nothing was left on this point for the consideration of the jury ? I cannot find any substantial difference in the evidence bearing on this point adduced at the trial before the last, and the evidence adduced at the last trial. There were some more witnesses examined on behalf of the defendant; their evidence, perhaps, tended to contradict that of the plaintiff; but by no means made it more manifest that the judge should have nonsuited the plaintiff on the ground of th uncontradicted negligence of the deceased.

At the last trial, all the facts were proved, which were proved at the ono that preceded it; and these were very succinctly stated in the following synopsis, contained in the opinion delivered by Jndge Hunt when the case was last in this court:

“ On the day in question, the deceased drove his empty sleigh with a pair of horses into the village of Bath, intending to cross the ferry to Albany. The boat was not ready; and he fastened his horses in front of the tavern and went in. In a short time, notice was given that the boat was ready ; his associates crossed over the track in their sleighs, one of them remaining near the track to assist the deceased, the others reaching the boat. The deceased came out, unhitched his horses, sat upon the bottom of his sleigh, drove northerly a few feet, turned westwardly, drove one hundred and twelve feet toward the ferry, when he reached’ the railroad track, when his horses were struck by the engine and cars going southwardly, his horses killed, and himself so badly injured that he died within a few days thereafter. As he drove northwardly from the hotel, he could see up the railroad a distance of thirty rods. After turning westwardly toward the ferry, and going a short distance, the view of. the road northerly was cut off by the station-house, a building extending about fourteen feet in a direction easterly and westerly. As the deceased approached the train ho was driving on a moderate trot; he was shouted at three times by a man standing on the steps of a store adjoining the track, that the cars were coming, to which he paid no apparent attention. Whether he heard or understood does' not appear. One of the railroad hands east of the.track made motions to him. :’-‘--mled by the maker as signals to stop; and one of his own comrades, Simmons, on the west side of the track, made signs intended by him to effect the same purpose. The deceased drove on at a moderate trot till he reached the track. The train, as one witness testified, was running at a speed of fifty miles an hour, which would iarry the train over the thirty rods in about fourteen and one-sixteentli seconds. The deceased was a frequent passer at this place; and it had been the established custom there for some years, that a flagman with a, white flag should signal the approach of cars not intended to stop, and with a red flag when the train was expected to stop.”

On these same facts, which appeared on the trial that we are now reviewing, we were asked to decide, that the judge should have nonsuited the plaintiff, when, by the decision rendered by this court on its last consideration of the case, it was held that these facts were sufficient to carry it-to the jury. ISTo new proof-has been given or withheld, no circumstances have occurred, which could justify us for a moment to overrule the former decision. ¡Nothing could justify this but a very palpable misapprehension of the facts, or a very palpable mistake of the law. At neither trial, indeed, was there any positive proof that the deceased directed his vision up or down the road. But may he not have done so, nay, do not the circumstances make it probable that he did so before he reached the station, which then obstructed his view. We have seen, that, as he drove northward from the hotel, he could see up the railroad a distance of thirty rods, and then, seeing no approach of the train, nor any thing indicating its approach, he ventured to cross. We are to infer from the verdict at the last trial, that the jury decided that no whistle was sounded, and no bell rung as the train approached the crossing; now, if ever there was positive proof that the deceased neglected to look up or down the track, would it be negligence in him not to have done so in the absence of the customary and legally required signals ? I am not aware that this court has decided, or that there is a current of authority anywhere deciding, that, when a railroad company neglects to give these signals, the want of ordinary care can be imputed to a person crossing the track, if he omits to look up and down just before he crosses. The absence of the accustomed signals is calculated to impart an assurance of safety, particularly to one who is in the habit of crossing the same spot frequently, and who, perhaps, has never before known of their omission; and can it be correctly alleged that he is guilty of negligence if he abates his usual vigilance under such circumstances ? I think that it would not be unreasonable to recognize such negligence, on the part of a railroad company, as a proper element for the jury, in considering all the circumstances relating to the question of negligence on the part of the deceased. Any contributory negligence of a person attempting to cross, no doubt, excuses the company, whether it does or does not use the required signals, or is or is not guilty of any other negligence.

But, I repeat, is it reasonable to impute negligence to a person, who frequently, for years, is accustomed to hear signals, if he omits, on one occasion, when they are withheld, to look up or down the road, immediately before crossing? At all events, there is nothing in the proof to show that the deceased neglected to look -when his horses, on turning them round from the place where they were hitched, faced the north, and where he had an unobstructed view of the cross ing, and of the railroad track for thirty rods north of it. The fact, that the witnesses failed to observe, that he, after ward, did not look up or down the track, is not, of itself, certain proof of the want of ordinary care on his part.

In my opinion, this court, in its last review of this case, in no respect relaxed the salutary rules which it had in many previous cases adopted ift relation to the negligence *of persons who are on railroads. In neither of the opinions, delivered on that occasion, is the rule ignored or modified; that, when the injured person has not used ordinary care, there can be no recovery against the company. They only in effect intimate, that what is want of ordinary care, is a question, depending, for the most part, upon the facts and circumstances of each particular case.

The last decision in this case (35 N. Y. 9) is not, I think, at variance, substantially, with the legal propositions and. deductions of the previous decision. (24 How. Pr. 97.) The latter was based, evidently, on a mistaken statement of the facts, which, if true, would have justified the court in concluding, that the deceased was guilty of negligence. The real facts, and the facts which were proved at the last trial, I repeat, authorized the judge to send the issues and evidence to the jury, in conformity with the decision of this court in its last review of this case; and, if he had not done so, the nonsuit would, unquestionably, be set aside.

The judgment should be affirmed with costs.

Woodruff, J.

Without attempting an extended discussion in a case which has been the subject of repeated and extended discussion already, I prefer to state briefly the propositions to which my assent is given, for, in my judgment, the case itself involves rather the application of settled principles of law to the evidence, than any serious contest about the principles themselves.

1. 'That the plaintiff was bound to prove that the defendants were guilty of negligence, and that an omission to ring the bell or blow the whistle on approaching a road crossing is negligence, is not disputed.

Whether, in this case, the defendants did or did not ring the bell was in dispute, and the testimony was conflicting. It was, therefore, proper to leave that question to the jury.

2. The charge of the judge seems to assume that it was the duty of the defendants to keep a flag-man at the crossing to give notice of the approach of the train, and that their omission to do so is per se negligence. There is, I think, no such rule of law, and the court would - not be warranted ' -> giving such an instruction to the jury. It cannot be said, affirmatively, that'any such duty rests upon the company. Ho statute requires it. The company have the right to run their trains carefully and prudently on the track which they are by law authorized to construct and use, and, if they do this, then it is the duty of those who have an equal right to use the highway at the crossing, to avoid them, provided they give the warning prescribed by the statute.

In determining whether the company were duly and reasonably careful in the running of their train, it is not necessarily enough, under all circumstances, that they give the statute warning. The rules of the common law prescribing reasonable care in the exercise of their own right, that others, also, in the careful exercise of their own rights, may not be injured, still rests upon them, and such care, where the danger to others is greater, as' in cities or towns, may require them to slacken their speed and move their ponderous engines with very great caution and circumspection, because they are so powerful for harm. "But, doing this, it cannot be.said that they are also bound to place a man at the crossing in addition to such care and caution.

True, if the company elect to do so, as they may for their own convenience, they will thereby render it proper to run with greater speed and less caution on the part of the ...gers of the train. But the law does not require it, however stringent in requiring care in the management oí the train itself.

But there is no exception to the charge in this respect.

Besides, the company, by their own practice, may make a law for themselves. If they had an established and hitherto uniform practice on the subject, which was notorious, and known to be so, then to withdraw the flag-man, when their own conduct had justified the expectation of all who were in the habit of using the highway, that warning by the flag would be given, would he improper, and he a neglect of suitable precautions, unless increased vigilance and care in the management of the train, or the employment of other means, furnished equivalent assurance of safety.

3. That, if the intestate was guilty of negligence contributing to the result, the plaintiff was not entitled to recover, is not denied. This was so charged on the trial.

The question is, where do the proofs clearly establish such negligence, so that the court should have granted a nonsuit or given a peremptory instruction to find for the defendant? Whatever I might conclude to be the preponderance of the evidence, the case seems to me one in which, upon this question, honest, intelligent and impartial men may rationally differ. And, if the doubt be such- that such men, acting under a sense of great responsibility, and with a single purpose to arrive at the truth, may reasonably come to opposite conclusions, then it is proper to submit the question to the jury, and' a nonsuit should not be ordered by the court.

A traveler approaching a railroad track is bound to use his eyes and ears, so far as there is opportunity.

Negligence in the railroad company in the giving of signals or in omitting precautions of any kind, will not excuse his omission to be diligent in such use of his own means of avoiding danger. And where, by such use of his senses, the traveler might avoid danger, notwithstanding the neglect to give signals or warning, his omission is concurring negligence, and should be so peremptorily declared by the court; and, where proof of this is clear, the plaintiff thus negligent should be nonsuited.

But, where it is doubtful, as I think it is in this case, under all the circumstances testified to, whether the traveler did or did not look up and down the track as far as he could see it; whether, in the short distance he had to drive, he could, if he did look, see the approaching train; whether the train came into view (considering the speed at which it was running, according to the testimony of some of the witnesses) until the moment when he reached the station-house, where Ms view was necessarily obstructed; whether he was not misled by the failure of the company tó show the flag, as they had been accustomed to do; whether the attempts made to stop him were not, under the circumstances, liable to misinterpretation, and might not be reasonably interpreted by a cautious person to be intended to hurry him forward, so as to reach the ferry-boat, then in waiting, instead of warnings to stop; and so, finally, the question whether he used ordinary care and prudence becomes so complicated, and involves so many details, that honest men, acting without bias or partiality, in a single and sincere desire to determine according to the truth, may reasonably differ in their conclusions, — then the question should be left to the jury.

For these reasons, I concur in the' result at which others of my brethern have arrived, viz., that the judgment should be affirmed.

Bacon, J.

I concur in all respects in the foregoing opinion, and put my assenting vote for affirmance upon the same grounds.

Mason, J.

I concur in this opinion in all respects, save I prefer to express no opinion upon the question, whether, under any circumstances, the railroad company should be required to place a flag-man at a road crossing.

Affirmed.  