
    David F. Smith, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — choice, between two perils—where a person, being driven by his servant, is injured at a railroad crossing both he and his servant must be. free from.contributory negligence.
    
    In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, a railroad corporation, it appeared that the plaintiff was in a two-horse lumber wagon,.which was driven by his. hired man, Henry Speer, to whom the plaintiff gave no. directions as to the. manner in which he should drive; that as they approached á highway crossing a train was seen to be approaching; Speer first pulled up the horses, and* tlien both lie and the plaintiff urged them to cross the track, but the wagon "was struck and the plaintiff was thrown out and injured. There was a con-Diet of evidence as to Whether proper signals were, given, and there was. some evidence that a person would have to he within twenty-five feet of the track before he could see 500 feet up the track. The speed of the train was from thirty-five to fifty miles an hour.
    
      Held, that the questions of negligence and of contributory negligence were properly submitted-to the jury;
    That when a person is confronted by danger, from both of two lines of action, one of which he must take, his choice of either does not constitute negligence;
    That in order that plaintiff might recover, it was necessary for him to show not only that he was' personally free from negligence, hut that Speer, his servant, • who was engaged in’ the same common purpose of approaching and safely crossing the defehdant’s tracks, was free from, contributory negligence;
    That a charge: by the court, that if Smith', the plaintiff, was taking care for • • himself in watching for the train, it made no difference whether Spe.er was there or not,vbec'ause the plaintiff was: doing- all- he was -called upon to do, was - . not a correct statement of the law -under the facts of the case. •
    Fóllett and Adams, JJ., dissented.
    Appeal by the defendant, The New York Central and Hudson River 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 Ontario on the 26'th day of December, 1895, upon the verdict of- a jury rendered after a-trial at-the Ontario Circuit, and also from an order entered in said clerk’s office on the 26tli day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was tó recover for personal injuries sustained by the plaintiff' on the 16th of August, 1892, while crossing the defendant’s railroad about a mile east of Chapinville, which was the first station east of Canandaigua on the defendant’s road. A highway cross'es the railroad, in an easterly and westerly direction. There is a cut on thé defendant’s road some 300 feet from the railroad crossing, and the highway' as-it comes down to the railroad from the east, is also in á cut. The road has a descending' grade of. 33.79 feet to the mile to the northeast, and the highway at the crossing is 7 feet lower than it "is 200 feet further "east. ■ It descends about 2 feet within the last -38 feet of the track.’ The plaintiff approached the crossing from the-west and was unable to see along the railroad to the -southwest until he got. within, about-40 feet, of the track. It is claimed that at that-distance he could, see 240 feet,, and- when -within 26 feet he could see the ringing post on the road, which is some 1,345 feet southwest of the crossing. Plaintiff was the lessee of a farm, which was divided by the railroad, and resided west of the railroad, and he left his house about half-past one o’clock the day of the accident to cross the track to get a load of oats. He had a two-horse lumber wagon with a rack on it, and with him was his hired man, Henry Speer. The horses, first, were on a walk, and the walk became quite a brisk one as they approached the track. The plaintiff sat on the left-hand side of the wagon, with his back to the north, about the middle of the hay rack, and Speer, his hired man, was sitting on the other side of the wagon facing him, and was driving the horses. The east-bound train left Canandaigua twenty-two minutes late and was due at the crossing at about one-seventeen p, m. .The plaintiff testifies. that he supposed it1 had gone, anti ■ as- he "approached the track he was laboring under that impression,, and looked first for the west-bound train, and became satisfied that none was coming; he looked the other way, and the passenger train was right on him, approaching from the west. Speer testified that the plaintiff, as they approached the track, was filling his pipe or lighting it, and that he did not notice that the plaintiff paid any attention to the railroad, as they were talking together. The plaintiff, in his testimony, says: “ I had my pipe in my mouth, I think. I don’t think I took my pipe out as I went along down towards the railroad; still, I might. I don’t recollect the circumstance that, at about the time of the accident, or just before, that I was lighting my pipe. It is possible that I wras.” Speer testifies that he heard no signals, and that the wagon was making: a noise and that Smith and he were talking.- Smith testifies that he did not hear the-train whistle for-the crossing, but he refhséd'-to'-bé positive that it did not whistle. -As the plaintiff ■ and Speer discovered the approaching train,' Speer first pulled up on the horses, and then immediately he and Smith urged them across and the wagon was struck and the plaintiff, was thrown out and injured to some • extent. There is some evidence that the cut on the railroad was nearly 1,000 .feet long and from 14 to 31 feet deep. The base of the cut was in some places only 8 feet from the rails. There is some evidence to the effect that -the plaintiff would need to be within 25 feet of the track before- he could see 500 feet up the track. There was' some slight curve in the track. The train was running from thirty-five to fifty miles an hour. Plaintiff called several witnesses who testified that they heard no signal of any kind as the train approached the crossing. The witness Carson, who noticed the train and watched it, swears, that no signal nor warning of any kind was given from the- train until just as it struck Smith’s wagon, when it gave the danger signal. Smith and Speer were the only eye witnesses to the collision aside from what was discovered by the trainmen. The engineer testifies that he was within 500 or 600 feet of the crossing when he saw the horses’ heads, and that he then sounded the whistle in less than a second after he saw the horses’ heads, and that he ran about 200 feet when he. saw the men.
    
      Albert H. Harris, for the appellant.
    
      John Gillette, for the respondent.
   Hardin, P. J.:

The facts and circumstances disclosed by the evidence are sufficient to make it a. question for the jury whether the defendant was guilty of negligence which caused or contributed to the injury which was received by the plaintiff. (Greany v. L. I. R. R. Co., 101 N. Y. 423; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 364;, Swift v. S. I. R. T. R. R. Co., 123 id. 649; Miller v. N. Y. C. & H. R. R. R. Co., 82 Hun, 164; S. C. affd., 146 N. Y. 367.)

(2) Upon all the evidence given at the trial we are inclined to think that the question of whether the plaintiff was guilty of contributory negligence was one of fact proper to be submitted, to the jury. (Miller v. N. Y. C. & H. R. R. R. Co., 88 Hun, 164; affd., 146 N. Y. 367; Wilcox v. N. Y., L. E. & W. R. R. Co., 88 Hun, 267; Salter v. U. & B. R. R. Co., 59 N. Y. 631; S. C., 88 id. 42.)

When Smith and Speer discovered the- on-coming train, whether it was wise to advance or to endeavor to hold the team may- have been a very close question, and, considering the imminent peril they were in, they could not be expected, to act with cool deliberation; and whether, under all the circumstances, their action was. such as might reasonably be expected, was a proper question for the jury to determine. (Miller v. N. Y. C. & H. R. R. R. Co., supra) “ When a person is confronted by danger from both of two lines of' action, one of which he must take, his choice of either is not negligent.” (Leavitt’s Law of Negligence, p. 608, § 156; Buel v. N. Y. C. R. R. Co., 31 N. Y. 314; Coulter v. Am. Merch. Un. Ex. Co., 56 id. 585; Twomley v. Cent. Park, N. & E. R. R. Co., 69 id. 158; Salter v. U. & B. R. R. Co., 88 id. 42.)

(3) After the delivery of the body of the charge the counsel for the defendant asked the court to charge, and it did charge : That if Speer, the driver of the horses, was negligent in not exercising care in approaching the crossing, or at the crossing, Mr.. Smith, the plaintiff, is chargeable with Speer’s negligence and the consequences thereof.”

Thereupon the counsel for the defendant requested the court to charge : “ That if Speer, the driver, failed to look for tiie train, or pay any. attention to its approach, he was guilty of negligence, and Smith, the plaintiff, is chargeable therewith, and if the jury find that Speer’s negligence contributed to the accident, the plaintiff cannot recover.”

The court declined to so charge, and added, viz.:' “ The law about that is just this, Speer was the hired man there; he was under the control of Smith, and if Smith himself was using proper care and watching out for that train, then it made no difference whether Speer was doing it or not, but if Smith Was not doing anything, and leaving it for Speer to see, not only about the driving of the horses, but watching out for the train and trusting the whole matter over to Speer, then Speer’s negligence would be the negligence of Smith. But if Smith was taking care for himself, then it does not make any difference whether Speer was there or not, because Smith was doing all he was called upon to do.”

Thereupon the defendant excepted to the refusal of the request made and also excepted to the charge as made. In considering these exceptions it is proper to call to mind the situation of Speer and Smith at the time they were attempting to cross the defendant’s road. They sustained to each other the relation of. master and servant or principal and agent, and all the duties incident to those relations are to be imputed to them respectively. Speer was driving at the time, having the lines, in his hands and the management of the team. He says in the course of his testimony, viz.: I was looking at the horses going along down. I had the responsibility of driving them. There were no direction's from Smith about the manner of driving.”

According to the plaintiff’s testimony he was doing .nothing to ■control or manage the horses. He says he looked and listened ; yet he states that he committed the control of the horses to his servant ■Speer. The request made called for a consideration of Speer’s failure of suitable attention in approaching the crossing, and also of the manner in which he handled the 'horses at the 'time- the danger was discovered, especially in his efforts first to stop them arid then afterwards his sudden change of mind in urging them forward. The burden was upon the plaintiff to show that lie was free from contributory negligence. In bearing the burden it was incumbent upon him to indicate, by the testimony relating to the circumstances jueceding and attending the crossing, that he and his servant had used due diligence in approaching and attempting to cross the railroad.

In Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16) the plaintiff was riding to market on a fish wagon and the' two men Were so situated that each was in a situation where he could control or manage, or contribute to the management of, the team. The plaintiff was injured. In the course of the opinion delivered in that case it was said: “We think the plaintiff was chargeable with the neglect of his comrade.”

In Brickell v. N. Y. C. & H. R. R. R. Co. (12 N. Y. St. Repr. 450; S. C. affd., 120 N. Y. 290) it appeared that the plaintiff took passage in Pulver’s top buggy for the village of Palmyra, and that plaintiff received injuries in attempting to cross the railroad, and in the course of the opinion delivered in that case I had occasion to. say: “ If the plaintiff ór Pulver had attended vigilantly to their duty in approaching the crossing the injuries in question might have been averted. Apparently they were occupied in conversation, giving no especial attention to the circumstances affecting .their safety in crossing the railway during the progress from the" south side of the bridge 120 feet onward”’

Follett, J.,

in concurring in that opinion, stated that a witness testified: “ That he saw and heard the train and stopped and waited for it, but "that the carriage in which the plaintiff was riding kept right on and was struck. The plaintiff, by his own evidence, established that his negligence contributed to the accident.”

When that case was under review (120 N. Y. 290) it was said in the course of the opinion, viz.: “ The rule that the driver’s negligence may not be imputed to the plaintiff should have.no applies^ tion to this case. Such rule is only applicable to cases where .the relation of master and servant, or principal and agent, does not exist, or where the passenger is seated away from the driver, or is separated from the driver by an inclosure and is without opportunity to discover danger and to inform the driver of it. (Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 11.) It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable. The plaintiff was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and environments, and with at least the same, if not better, opportunity of discovering dangers that the driver possessed, and without any embarrassment in communicating them to him.”

In speaking of this rule it is said in Wood on Railroads (ed. of 1894, § 322a) that “where the master is seated on the driving-box with his servant, who holds the reins, and an injury occurs while they are driving over a crossing, the master’s action for damages will be barred if the negligence of. his servant contributed to cause the injury.”

And in volume 4 American and English Encyclopaedia of Law (p. 82, § 38) it is said, viz.: “ Imputable contributory negligence, which will bar the plaintiff from recovery, exists when the plaintiff, although not chargeable with personal negligence, has been by the negligence of a person in privity with him, and with whose fault he is chargeable, exposed to the injury which he received through the negligence of the defendant.”

. In the course of the opinion delivered in denying the motion at Special Term for a new trial, the learned trial judge observed: “ If the plaintiff was taking care for himself, then it does not make any difference whether his hired man was there or not, because the plaintiff was doing all that he was called upon to do. * * * If a man was taking care of himself for his own safety, he certainly could not be made liable for any accident that occurs, although somebody else, upon, whom he was not depending, was not using proper care.”

We think the failure of the explanation made in the charge and of the explanation made in defense thereof found in the language we have just quoted, lies in the omission to apply all the facts and circumstances disclosed by the evidence to the rule of law which casts Upon the plaintiff the burden or showing that he was not only personally free himself, ■ but that his ■ agent or servant, who was engaged in the same common purpose, at his instance and request, of approaching and safely crossing the tracks of .the defendant, was free from contributory negligence. (See, also, Little v. Hackett, 116 U. S. 366.)

It is contended,'however, by the learned counsel for the respondent that “ even, if technically, the defendant was entitled to the abstract charge requested, no harm has happened to it.”

We are not able to assent to that view of the case. The evidence relating to the plaintiff’s freedom from contributory negligence presented a very delicate question for the jury to determine, and the jury, as the charge was made, and as the refusal was inade, and as the explanation was made, may'have had aia imperfect understanding of the exact rules of law which were applicable to the facts relating to the question of the plaintiff’s freedom from contributory negligence. We cannot assent to the supposition that the jury may not have been misled by the rules of law delivered to them by the learned judge at the trial. We are of the opinion that the exceptions present such errors as require that there should be a new trial.

Green, J., concurred; Ward, J., concurred in the result; Follett and Adams, JJ., dissented.

FollEtt, J. (dissenting):

The only acts of the plaintiff or of his driver which the defendant asserts were-negligent and contributed to the accident were:

(1) The conduct of the driver in the management of the team at the crossing.

(2) The failure of the plaintiff to look attentively and listen, for trains.

(3) The failure of the driver to look attentively and listen ■ for trains.

The defendant requested the court to charge the following propositions:

(1) “ That if Speer, the driver of the horses, was negligent in not exercising care in approaching the crossing, or at the crossing, Mr. Smith, the plaintiff, is chargeable with Speer’s negligence and the consequences thereof.”

(2) “ That if Speer, the driver, failed to look for the train or pay any attention to its approach, he was guilty of negligence, and Smith, the plaintiff, is chargeable therewith, and if the jury find that Speer’s negligence contributed to the accident, the plaintiff cannot recover.”

(3) That Speer, by his own admissions, in not looking for the train, or paying any attention to its approach, was guilty of negligence in his manner of approaching the crossing.”

The first request was charged. To the second request the court replied: I decline that. The law about that, is just this: Speer was the hired man there ; he was under the control of Smith, and' if Smith himself was using proper care and watching out for that train, then it made no difference whether Speer was doing it or not, but if Smith was not doing anything, and leaving it ,to Speer to see, not only about the driving of the horses, but watching out for the train and trusting the whole matter over to Speer, then Speer’s negligence would be the negligence of Smith. But if Smith was taking care for himself, then it does not make any difference whether Speer was there or not, because Smith was doing all he was called upon to do.”

The driver was the. servant of the plaintiff, and was acting under his immediate supervision, and if he negligently managed the team and so contributed to the accident, his negligence was imputable to the plaintiff, and he was not entitled to recover. This proposition was distinctly charged in response to the first request.

It had been also expressly charged that if the plaintiff failed to look attentively and listen for trains he could not recover.

The verdict being for the plaintiff, the jury must have necessarily found that he did attentively look and listen.

The second request asserts, in effect, that if the plaintiff looked and listened with care and attention, and the driver failed to look and listen, he was negligent, and that such negligence was imputable to the plaintiff.

I do not think that, when a master and his servant are riding together in a wagon and the servant is driving, and the eyesight and hearing of each are equally good, if the master looks and listens and the servant attends with due care to the management of his team, the failure of the latter to look and listen is, as a matter of law, negligence, but whether both should have looked and listened was, under the circumstance of this case, a question of fact.

Under the rule laid down in the prevailing opinion, if there had been two or more servants riding with the master, it would have been necessary to show that every one looked and listened, in order to show freedom from contributory negligence. I do not think this can be affirmed as an absolute rule of law. This accident occurred in the daylight, at a crossing familiar to the plaintiff and his servant; the plaintiff sat facing the direction from which, the train came, the driver partly facing in the 'opposite direction, and, under the circumstances, the jury had a right to find as a fact that one good lookout was sufficient to establish freedom from contributory negligence in this respect. Had the second instruction prayed for been given, this right would have been taken from the jury.

Defendant’s counsel “ excepted to the refusal to charge, and to the- charge as made.” He does not challenge the correctness of one of the propositions contained in the third instruction now under consideration, to wit: “ If Smith was not doing anything, and' leaving it to Speer to see not only about the driving of the horses, but watching out for the train, and trusting the whole matter over to Speer, then Speer’s negligence would be the negligence of Smith.”

A general exception to a paragraph of a charge which contains two or more propositions, one of which is correct and the others incorrect, raises no question which can be considered on appeal.

By this request the court was asked to charge as a rule of law applicable to this case, that the failure of the driver to look and listen was contributory negligence and a bar to a recovery. The court was not requested to charge that the jury might find as a fact that the failure of the driver to look and listen was negligence, and, if só found, the plaintiff could not recover. Nor was the attention of the court called to this proposition by an exception.

The third request simply repeats in different form a proposition of the second request, that the failure of the driver to look and. listen was, as a matter of law, negligence, and was properly refused.

The judgment and order should he affirmed, with costs.

Adams, J., concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.  