
    JOHN SUTHERLAND, Plaintiff and Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.
    
      Run-over Case.
    
    I. NEGLIGENCE BY DEFENDANT.
    1. When evidence insufficient to warrant submission to THE JURY.
    
      {a) Hinging of the bell.
    
    Where the negligence claimed consists in the alleged not ringing of the bell, evidence by the injured party that he did not hear the bell, with proof that the engineer in charge of the engine by which the injury was inflicted, having learned that some one had told the superintendent that the bell was not rung, appealed, to another employee to state whether the hell was rung, opposed by evidence from the person of whom this inquiry was made, and from the fireman and baggage-man of the train to which the engine was attached (the engineer being deceased), that the bell was rung, is insufficient to warrant a submission to the jury.
    
    1. The failure of the injured party to hear the bell is rather indicative of his own preoccupation and absentmindedness than evidence of negligence on the engineer’s part.
    2. The ffiguiry by the engineer is rather to be regarded as raising a strong presumption that the bell was rung, than as implying the existence of a doubt as to whether it was rung or not.
    1. Semble, The evidence on behalf of the plaintiff did not establish that the bell was not rung. It at most raised a mere presumption to that effect, which, if raised, was overwhelmingly rebutted by the defendant’s evidence.
    
      (b) Flagman.
    
    1. A railroad company is not bound to home a flagman at crossings to warn, those about to cross of the approach of trains.
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    
      a. Evidence of there being no such flagman is improper, and its admission under objection is error for which a judgment will be set aside, unless its effect is in some way obviated.
    II. NEGLIGENCE BY INJURED PARTY.—NOT LOOKING.
    1. His Duty. To stop, listen, and look in all directions from which danger may reasonably be expected.
    
      (a) Hence, upon his own testimony that upon crossing a railroad “he looked straightahead,” in the absence of any evidence that he looked in any other direction, or stopped, or listened, or adopted any precaution whatever, his complaint •should be dismissed,
    
    on the ground
    that he himself was guilty of negligence contributing to the injury.
    III. EVIDENCE, IMPROPER.
    1. Admission of, when not cause for reversal.
    
      (a) When similar testimony has previously been introduced without objection.
    3. What will not cure the error.
    1. A charge by the judge that the party against whom the evidence was admitted loas not bound to do or omit or to do the act concerning which the evidence was given, will not.
    
      (a) The jury may possibly have been adversely influenced by the testimony.
    Appeal from a judgment and from an order denying a motion for a new trial, made on the judge’s minutes.
    This is an appeal from a judgment entered on a verdict, rendered May 20, 1875, after a trial before Mr. Justice Curtis and a jury ; also from an order denying a motion made by the defendants on the judge’s minutes, to set aside the verdict, on the exceptions taken at the trial, and on the further grounds that the damages are excessive, and that the verdict was contrary to and unsupported by the evidence.
    The action was brought to recover damages, alleged to have been sustained by the plaintiff through the alleged carelessness and negligence of defendants in running a locomotive engine against him while he was in the act of crossing their railroad track, on the Fourth Avenue, at its intersection with Forty-seventh Street, in the city of New York.
    The plaintiff resided in Forty-seventh Street, east of the Fourth Avenue, and had his place of business on Sixth Avenue between Twenty-first and Twenty-second Streets. He was in the habit of crossing Fourth Avenue at Forty-seventh Street, frequently, in going to and from his place of business, and knew that the tracks extending up and down that avenue, at that point, were numerous, and that trains and single locomotives passed up and down those tracks frequently. On the morning of the accident, he walked up Forty-seventh Street, on its southerly side, to Fourth Avenue, intending to cross, and go to his place of business. As he walked over to the crossing on Fourth Avenue, he observed that there was a row of freight cars on the first (or easterly) track, standing on each side, north and south of him, with an opening between them, perhaps nine or ten feet wide, near the middle of the street. He passed through this opening between these cars, crossed the track on which they stood, took one step after getting off the track on which they were stationed, “ one step beyond these cars,” and got one foot over the track, upon which the locomotive was coming, when he was hit. He was struck down by the engine ; his arm was broken, and the fore part of his left foot was crushed, so as to require the amputation of four of his toes. He was otherwise severely bruised and injured.
    
      The locomotive that struck him was going south towards the depot; the empty cars on the easterly track, a long row of them, extended north of the passage way, and, as he testified, “he could not see the train coming down at all.” It does not appear that he stopped, or listened, or looked up or down. On the contrary, he says himself: “I carried a cane, and 1 was loolcing straight across Fourth Avenue.'’’’
    
    Upon this a-nd other evidence tending to show the nature and extent of his injuries, but not materially affecting the question of neg’ligence, as imputable to either party, the plaintiff rested his case. The defendants then moved for a dismissal of the complaint, on the ground that no negligence had been shown on the part of the defendants, and that there was contributory negligence on the part of the plaintiff.
    The motion was denied, and defendants excepted.
    The defendants then proved by the fireman, who, at the time of the accident, was on the locomotive, that he rang the bell as the train came in ; that he commenced ringing it at the south end of the Yorkville tunnel, and continued to ring it until the engine reached the side track going to the engine-house, south of the point where the accident occurred. The baggage-man of the train also testified that the bell was rung, to his knowledge, from Mott Haven junction until the engine reached the station ; that he heard it all the way down, except through the tunnel. The baggage was in the forward part of the first car ; he was in the car attending to his duties, except for about fifteen seconds, when he- was standing on the front platform of the baggage-car uncoupling the engine from the train. Another witness, in the employment of defendants, who, at the time of the accident', stood in the centre of Fourth Avenue, ten feet south of the switch-house on the north line of Forty-seventh Street, testified that the engine was at Fiftieth Street when he first saw it; that the bell was ringing there, and continued to ring till the engine reached Forty-fifth Street; that his attention was called to the matter immediately after the occurrence, by the engineer of the train (since deceased), who came up and asked him about it. “ He (the engineer) asked because some one said to the superintendent it was not rung; I heard it ring, and he asked me in regard to it.” There was other evidence as to the height of the cars standing on the easterly track, and as to whether they obstructed the view up the avenue, so as to prevent one passing between them from seeing the locomotive coming down; and it also appeared without contradiction, that the whistle was blown eight or nine seconds before the plaintiff was bit.
    Ho evidence was offered by the plaintiff to prove that the bell was not rung, or that the whistle was not sounded ; nor did the plaintiff testify that he did not hear the dell, until he was recalled for that purpose after counsel for defendants'had commenced summing up, and had remarked to the jury that such testimony had not been given. He was then recalled, by permission of the court, and being asked if he heard any bell, answered, “I did not.”
    At the close of defendants’ evidence, the motion for a dismissal of the complaint was renewed and denied, and exception was thereupon duly taken.
    The court submitted to the jury the question of negligence, with respect to each of the parties, charging that if there was an omission to ring the bell, the defendants were guilty of negligence, and that if the plaintiff could see the locomotive, he was bound to look and guard against it; that there was conflicting evidence as to whether he could see the train at all, by reason of the position of the freight cars on the easterly track ; that the plaintiff was bound to look both ways before stepping on the track on which the locomotive was, if he could, and that if he omitted to do so, he could not recover; that if there were obstructions to the plaintiff’s view, as he approached the track on which the locomotive was, that fact, under the circumstances, imposed the duty of greater caution on him ; and that, if he was guilty of any negligence, however slight, contributing to the accident, no recovery could be had.
    
      Frank Loomis, attorney, and of counsel for appellant, urged :
    I. The motion to dismiss the complaint should have been granted. 1. It was the duty of the plaintiff to have looked in both directions before stepping on the track on which he was hit (Gonzales v. N. Y. & Harlem R. R. Co., 38 N. Y. 440 ; Wilcox v. Rome & Watertown R. R. Co., 39 Id. 358 ; Haight v. N. Y. C. R. R. Co., 7 Lansing, 11; Mitchell v. N. Y. C. & H. R. R. R. Co., 9 Supreme Court [2 Hun], 535). It is indisputable that after passing the obstruction of the stationary cars, the plaintiff could have looked in time to have avoided the danger ; and he admits that he did not look. Nor does he claim" that he listened— he simply says he did not hear. This will not satisfy the law. A vigilant use of the faculties is required of one approaching a railroad to cross it (Davis v. N. Y. C. & H. R. R. R. Co., 47 N. Y. 400). 2. The evidence to take the case tb the jury on the question of defendant’s alleged negligence in omitting to ring the bell, was insufficient (Toomey v. London, Brighton and South Coast Railway Co., 3 Com. Bench. N. S. 146 ; Baulec v. N. Y. & Harlem R. R. Co., Court of Appeals, 48 How. Pr. 399). The burden of proof was on the plaintiff to establish affirmatively, and to make out more than a balance case, that the bell was not rung—and this he utterly failed to do (Button v. Hudson River R. R. Co., 18 N. Y. 251; Warner v. N. Y. Central R. R. Co., 44 Id. 465).
    
      II. The court substantially charged the jury that if the bell was rung the defendants were free from negliligence, and that if the plaintiff failed to look—if he could have looked so as to have avoided the accident, he was guilty of negligence, and could not recover. The verdict of the jury is so flagrant a disregard of these rules and the evidence as to compel the conclusion that they were influenced by passion or prejudice, and should be set aside as unsupported by the evidence (Toomey v. London, Brighton & South Coast Railway Co., supra; Seibert v. Erie Railway Co., 49 Barb. 583 ; Baulec v. N. Y. & Harlem R. R. Co., ante).
    
    III. Immaterial evidence was admitted under objection and exception, which possibly prejudiced the defendant.
    IY. The admission of evidence that there was no flagman at Forty-seventh Street was error (Beiseigel v. N. Y. Central R. R. Co., 40 N. Y. 9 ; Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 451). The instruction of the court that defendants were not bound to keep a flagman at the place in question, did not cure this error (Erben v. Lorillard, 19 N. Y. 299).
    
      Charles S. Spencer, attorney, and of counsel fox-respondent, urged:
    I. The plaintiff was not guilty of negligence. He used ordinary care, which is all that is required under the decisions. His attention was in no manner called to the locomotive, showing plainly that the engine bell was not x-ung. This portion of plaintiff’s testimony is corroborated by the fact, that one of defendant’s witnesses, John W. Springsteen, testified that the engineer came up to him immediately after the- occurrence, and inquired whether the bell was rung. It is claimed by the defense that the plaintiff could have seen the engine over the empty cars. Plaintiff swears he could not; as to the height of the cars there is some little conflict, although the weight of evidence on this point is in favor of plaintiff.
    II. The defendants were plainly guilty of carelessness and negligence.
    III. The motions made by defendants’ counsel for a dismissal of the complaint at the close of plaintiff’s case, and at the close of the entire case, were properly denied by the justice. The question of negligence is peculiarly a question to be determined by the jury, and the case must be very clear which will justify the court in withdrawing it from their consideration (Wooden v. Austin, 51 Barb. 9 ; Gonzales v. N. Y. & H. R. R. Co., 39 How. Pr. 407-418; Cook v. N. Y. C. R. R. Co., 3 Keyes, 476 ; Boyle v. Second Avenue R. R. Co., 30 How. Pr. 223; Johnson v. Hudson R. R. Co., 20 N. Y. 65 ; Willets v. Same, 38 Id. 490 ; 35 Id. 9 ; Filer v. N. Y. C. R. R. Co., 49 Id. 47).
    IV. It is well settled that the freedom from negligence which is required of plaintiff, involves only that ordinary prudence and attention which sensible men are accustomed to give in certain cases (Ernst v. Hudson R. R. Co., 35 N. Y. 9 ; Beiseigel v. N. Y. C. R. R. Co., 34 Id. 623 ; Mackey v. Same, 35 Id. 75; Brown v. Same, 34 Id. 405; see Justice Clerke’s opinion in Ernst H. R. R. Co., 39 N. Y. 62, and Justice Woodruff’s opinion same case; Nichols v. Sixth Avenue R. R., 38 N. Y. 131; see also opinion of Judge Hunt in Cook v. N. Y. C. R. R. Co., 3 Keyes, 476, Court of Appeals, 1867; Williams v. O’Keefe, 9 Bosw. 536).
    V. The damages were not excessive (Ranson v. N. Y. & Erie R. R. Co., 15 N. Y. 415 ; 18 N. Y. 534).
   By the Court.—Sanford, J.

The appeal in this •case, is taken both from the judgment and from the order denying defendants’ motion to set aside the verdict, and for a new trial.

The whole case is, therefore, before the court for review, as well upon the facts as upon the law.

While I am of opinion that the damages awarded by the jury would not be excessive, if the liability of the defendants to respond in damages were duly established, the conclusion at which I have arrived, after a protracted and deliberate examination of the case, in the light of the most recent decisions on the subject made by the court of appeals, is that the verdict, if not wholly unsupported by, is, at least, clearly against the evidence ; and that the court, either before or after the defense was put in, would have been justified in dismissing the complaint, both because the evidence was insufficient to make out a case of negligence on the part of the defendants, and for the reason that there was no evidence to warrant an affirmative finding that the plaintiff was- himself free from negligence which contributed to the injury.

The sole proof, tending to establish the allegation of negligence on the part of the defendants, related to the ringing of, or the omission to ring, the bell attached to the locomotive.

That there was no proof or suggestion of any other negligence, on defendants’ part, is manifest not only from a perusal of the evidence, but from the charge of the court. In submitting the question of defendant’s negligence to the jury, after stating the contention of the parties with respect to that of the plaintiff, the court used the following language :

“It is claimed on the part of the plaintiff, that he heard no bell ring, and that no notice was given him of the approach of the locomotive, of any kind, and that there was no flagman in attendance. On the other hand, the defendants produce testimony, showing, as they claim, that there was a bell rung on the locomotive, and that there was a warning, in that way, given to plaintiff. Hence you will perceive that there are two great questions in this case ; one, whether there was negligence on the pari of the defendants, that is, did they or did they not, by the ringing of the bell, give the notice that the law requires them, to give when a locomotive passes across any road ? Second. Was there or not contributory negligence on the part of the plaintiff? ”

The court further charged that the defendants were not bound to keep a flagman on the street in question, and that they were not responsible for the obstruction, so far as the street was obstructed by cars on the side track. That “if there was an omission to ring that bell, then the defendants were guilty of negligence, for it was their duty to ring the bell, as they approached the crossing.” He then directed the attention of the jury, in general terms, to the testimony of the plaintiff, in that respect, and to that of the employees of the company, and to the inquiry said to have been put by the deceased engineer to one of the witnesses, if the bell had not been rung, and instructed them to determine from all this evidence, and from all the surrounding facts, “whether that bell was rung or not.”

The court, therefore, in effect, instructed the jury that the defendants were entitled to a verdict, if the bell was rung ; if not, that the verdict would depend upon the presence or absence of contributory negli gence on the part of the plaintiff.

How, upon this question of the ringing of the bell, if there was conflicting testimony at all, the conflict was so slight as scarcely to admit of a doubt that the bell was actually rung. The onus probandi was upon the plaintiff to show that it was not. He was bound to make out, affirmatively, a case of negligence on the part of the defendants.

The only scintillas of evidence tending to establish such negligence consisted (1) in his statement—not made until after the case had. been closed, and defendants’ counsel had made the absence of such testimony the subject of appropriate comment to the jury—that he “did not hear any bell; ” and (2) in the fact that the engineer, who was in charge of the engine at the time of the accident, having learned that some one had told the superintendent of the road that the bell was not rung, appealed to another employee, cognizant of the fact [for he was on the spot, close at hand, when the accident occurred, but in no way instrumental in its occurrence], to state whether it was rung, “ because som.e one had, said to the superintendent that it was not.” The witness to whom this appeal was made, testified that the bell was ringing when he first saw the engine, then at Fiftieth Street, and that it continued to ring till it reached Forty-fifth Street. Two other unimpeached witnesses, both of whom were on the train, one, the fireman on the engine, the other, the baggage-man, in the baggage-car, which next succeeded the engine in the train, swore positively that the bell rang continuously from the time when the train emerged from the’ Yorkville tunnel until after the accident.

In the face of this direct, positive, and uncontradioted testimony, it seems to me that the mere failure of the plaintiff to hear the bell, if it be allowed any effect whatever, should be deemed rather a corroboration of whatever of evidence there may be in the case indicative of his own preoccupation and absent mindedness, than as constituting affirmative evidence from which the negligent omission to obey a well-known requirement of law may be imputed to the defendants or their servants.

I am also of opinion, that the inquiry addressed by the engineer to his fellow-servant, as to “whether the bell was rung,” is rather to be regarded as raising a. strong presumption that it was rung, than as implying the existence of a doubt, in the mind of the inquirer, as to whether it was rung or not.

It certainly was not evidence of any omission to ring. If I am correct in the view I have taken of the force and effect of the testimony under consideration, there was, to all intents and purposes, no evidence in the case from which the conclusion of negligence on the part of the defendants could fairly be drawn, and the complaint should have been dismissed (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356, 365). ' But, however this may be, the evidence of the plaintiff, at most, raised a mere presumption that the bell was not rung; and such a presumption, if raised, was overwhelmingly rebutted by the direct and positive testimony of three unimpeached witnesses, every one of whom swore positively that it was. The jury were not warranted in discrediting these three witnesses, and in rejecting their statements as false, by any such presumption. I can not persuade myself that the jury did intentionally or consciously discredit them. I prefer to believe that they willfully disregarded the instructions of the court, and took the law into their own hands, rendering a verdict through sympathy with the plaintiff, and in commiseration for his misfortunes, irrespective of the question whether the bell was rung or not.

At all events, the verdict was against the evidence upon this question, and the preponderance is so decided that a. new trial should be granted on that ground (Smith v. Ætna Life Ins. Co., 49 N. Y. 211 ; and see the observations of Mr. Justice Allen, at p. 266, in the case of Baulec v. N. Y. & Harlem R. R. Co., above cited, and also Toomey v. London, &c., R’y Co., 3 C. B. [N. S.] 146, and other cases cited; Ryan v. Thomson, 38 N. Y. Superior Ct R. 133).

I am also of opinion that the admission made by the plaintiff that he “ was looking straight across Fourth Avenue,” and the absence of evidence tending to prove that he looked in any other direction, or stopped, or listened, or adopted any precaution what ever in approaching a locality so fraught with danger, show an entire want of ordinary care on his part, and are inconsistent and at variance with the finding of the jury, that he was himself free from negligence contributing to the injury.

It is essential that there should be some evidence to support such an affirmative finding, and I think the case nowhere reveals it (Reynolds v. N. Y. Central R. R. Co., 58 N. Y. 248). “If this element is wanting, the court may non-suit, or set aside the verdict.” A verdict was set aside on that ground by the court of appeals, in the case last cited, although the general term had affirmed the judgment rendered on such verdict. In the case now under consideration, there was no conflict of evidence upon the question of the plaintiff’s negligence or freedom from negligence, and in view of his admission the court would, have been justified in dismissing his complaint, or in directing a verdict for the defendants. “The existence of the track was a warning of danger, . . . and it is in accordance with experience that prudent men do, before crossing a railway, loóle and listen for signs of danger (McGrath v. N. Y. Central & H. R. R. Co., 59 N. Y. 468). A fortiori the obligation exists in the exercise of ordinary care, to stop and listen, where, as in the present case, the numerous and complicated tracks of more than one line of railway are concentrated upon a single avenue, in their approach to a common depot.

The admission of evidence as to the absence of a flagman from the crossing at Forty-seventh Street, would have been fatal to the plaintiff’s judgment under the ruling of the court of appeals in the case last cited, and in earlier cases, but for the fact that similar evidence had been previously introduced without objection.

The charge of the judge to the effect that the defendants were not bound to keep a flagman there, did not preclude the possibility of the jury being adversely influenced by the testimony (Erben v. Lorillard, 19 N. Y. 299). But the like testimony, previously introduced without objection, would still have remained in the case, had this item of evidence been excluded when objected to. The error should therefore be disregarded.

But, under all the circumstances, I think the verdict should be set aside either as unsupported by, or against, the evidence, and that there should be a new trial.

Judgment reversed, and new trial ordered.

Speir, J., concurred.  