
    KELLER v. THE N. Y. CENTRAL R. R. CO.
    June, 1861.
    Affirming 17 How. Pr. 103.
    An action lies, under the statute, by the personal representatives, to recover damages for injuries causing death, without proof of resulting damages to husband, widow, or next of kin of the deceased.
    
    In cases of negligence, if the facts are so clear and decided that the inference of negligence is irresistible, it is the duty of the judge to decide it; hut when the facts, or the inference to be drawn from them, are in any degree doubtful, the only proper rule is to submit the question to the jury, under proper instructions.
    
    The question whether a railroad train stopped an ample time for all the passengers to get off, calls for an opinion on a matter not involving skilled testimony, and is improper." So of the question whether it was safer to discharge passengers in a station or before reaching it.
    Benjamin Keller, administrator of Rachel Keller, deceased, sued the defendants, in the supreme court, to recover damages under the statute (L. 1847, p. 575; L. 1849, p. 388), for injuries causing her death.
    The deceased was a passenger on defendants’ road, with her daughter, Sally Dickens. The train stopped at Canas tota, a station on the road. There was evidence that the name of the station was called; but the deceased was not aware what station it was until the train was starting, when she got off, with her daughter. They alighted on the track south of the one on which their train was, and before they had got off the track, an express train, passing at full speed, killed them. The details, so far as material, appear in the opinion.
    The deceased was a widow, and her only surviving next of kin were two sons, one married daughter (all of full age), and two children of a deceased son. The administrator, who brought this action, was one of the sons.
    The main questions litigated were, as to the negligence of the defendants, and the contributory negligence of the deceased.
    The jury found a verdict for plaintiff, for one thousand seven hundred dollars; and the court directed the exceptions to be heard, in the first instance, at general term.
    
      
      The supreme court, on the application at general term for a new trial, founded chiefly upon the ground that the intestate left no one who sustained any pecuniary loss by her death, held, on the authority of Quin v. Moore, 15 N. Y. 434, that the statute gave an action, not only where the decedent left some one who sustained the pecuniary loss, hut in any case in which the injured person could have maintained it if he were living. Reported in 17 How. Pr. 102.
    Judgment having been entered, the defendants appealed.
    
      Morris 8. Miller, attorney for defendants, appellants.
    
      H. Linlc, attorney for plaintiff, respondent.
    
      
       See also Ihl v. Forty-seventh street R. R. Co., 47 N. Y. 317; Dickens v. N. Y. Central R. R. Co., vol. 1 of this Series, p. 504.
    
    
      
       The case in the text, although decided by a bare majority of the court, has been reaffirmed by the court as an authoritative opinion upon the proposition stated in the second head-note, which determined the main question in the case (Ernst v. Hudson River R. R. Co., 35 N. Y. 9, 39; S. C., 3 Abb. Pr. N. S. 82, 106 ; 32 How. Pr. 61), and has been followed by the other courts. Seabrook v. Hecker, 4 Robt. 344; Lamb v. Camden & Amb. Tr. Co., 2 Paly, 454, 467; reversed on another point in 46 N. Y. 271; Burke v. Broadway & Seventh Ave. R. R. Co., 49 Barb. 529. For cases involving the same or similar circumstances, see Dickens r. The same defendants, vol. 1 of this series, p. 504; and Gonzales v. N. Y. & Harlem R. R. Co., 38 N. Y. 440; 1 Sweeny, 506; 39 How. Pr. 407.
    
   Mason, J.

The first question which I propose to consider in this case is, whether the judge at circuit was right in his re-fusal to grant the defendants’ motion for a nonsuit.

The grounds taken by the counsel on that motion, or that the complaint be dismissed, are: 1, because no damages were proved as contemplated by the statute,, neither to the husband, nor to the next of kin, nor are any alleged in the complaint; 2, because no negligence or wrongful act on the part of the defendants is proved, but the contrary; 3, because the undisputed evidence in the case shows positive carelessness on the part of the deceased, which contributed to the accident.

The case of Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. (4 Kern.) 310, and the complaint, in the action furnishes a complete answer to the first, objection. That case^,decides

that no proof of resulting damages in such an action is necessary to sustain it, and it is alleged in the complaint that the next of kin of Rachel, the intestate, suffered great loss and damage by means of her death.

There clearly was sufficient evidence upon the question of the defendants’ negligence to submit the case to the jury. In the first place, it was negligence in the engineer of the express train to run his train past the station at the rate of thirty to forty miles an hour, when he knew that the mail train was at the station, discharging its passengers. In the second place, it was negligence in the conductor of the mail train to make so short a stop at the station. He should have given more time, and seen to it that his passengers were safely discharged. At least he should have given them reasonable time. In the third place, the station should have been announced in the carwhere the deceased was. I know there is a conflict in the evidence, whether the station was announced in this car or not; that certainly belonged to the jury to .decide, and we must assume it was found in favor of the plaintiff. In the fourth place, the defendants’ servants, having in charge the mail train, knew that the express train was approaching at a rapid speed, and that there was great danger to be apprehended of injury to those who were to get off from their train, and they should have taken more precaution. The brakemen stationed to keep persons from getting off the south side were negligent in their duties, either in allowing these ladies to get off on that side, or in leaving their posts before the apprehended danger was past. It seems, that this danger was apprehended, and would have been guarded against if the brakemen had not been negligent in discharging their duty. The brakeman between the first and second car says, he knew the express train was coming, and kept his station on the south side of the platform, to prevent people getting off on that side. The deceased and her mother got off that platform, on the south side, and yet this brakeman says he first saw them on the south track. He must have been asleep, or else not attending to his duties.

The question of negligence in all cases involves a question of fact; and it is only where the question of fact is free from all doubt, that the court has a right • to apply the law without the action of the jury. Bernhardt v. Rens. & Sar. R. R. Co., 32 Barb. 165, 169. When either the facts or the inference to be drawn from them are in any degree doubtful as to the question of negligence, it is the duty of the judge to submit the matter to the jury, under proper instructions as to the law. 32 Barb. 144. The rule upon this subject was well stated by Judge Johnson, speaking for this court in the case of Ireland v. Plank Road Co., 13 N. Y. (3 Kern) 533, where he said: It by no means follows, because there is no conflict in the testimony, that the court is to decide the issue as a question of law.” He adds, “the question-of negligence is very seldom established by such direct and positive evidence, that it can be taken from the jury and pronounced upon as matter of law. On the contrary, it is almost always to be deduced as an inference of fact from several facts and circnmstances, disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases the inference cannot be made without the intervention of the jury, although all the witnesses agree in their .statements.. Deductions from facts and circumstances, from their very nature, are not strictly subjects of legal science, like presumptions of law. What constitutes negligence in such cases is determined by an inference of the mind from the facts and circumstances of the case, and as minds are differently constituted, the inference from a given state of facts and circumstances will not always be the same. I admit the facts may be so clear and decided that this inference of negligence is irresistible, and in every such case it is the duty of the judge to decide; but when the facts, or the inference to be drawn from them, are in any degree doubtful, the only-proper rule is to submit the' whole matter to the jury, under proper instructions.”

The case at bar is one-in which the judge, at circuit, was clearly in the line of his duty in submitting the cause to the jury upon the question of the defendants’ negligence. There were so many facts and circumstances, and such a variety of considerations to be taken into account in determining the question, the facts in regard to some of which being also in dispute, that the judge was right in leaving the inference or conclusion to be deduced from them to the jury; the facts were not so clear and decided that the inference was irresistible. My own opinion upon the trial was, that a case of negligence was proved, and if the duty had devolved upon me to decide, I should have so found. It is hardly a ground for interference with -this judgment that another judge, sitting in this court in review, comes to a different conclusion upon this question The question to be determined in such a case, is solved by the inference which the mind draws from the facts and circumstances of the case; and as minds are differently constituted, the inference from a given state of facts and circumstances will not always he the same. Here, then, we have a case which it is the province of the jury to decide.. It would have been an error in the judge at circuit if he had refused to submit this case to the jury upon this question of negligence.

The remarks above made as to the submission of the question of the defendants’ negligence, apply equally to the question of the negligence of the deceased. The negligence of the party which will defeat his action in such cases, is nothing more than want of proper care; and this question is always more or less affected by the conduct of the opposing -party. It is not always negligence to cross a railroad track. If the crossing is at a time when no train is due and cannot be reasonably expected to pass, it is not negligence. The passengers in this mail train had no reason to apprehend or expect that the express train would pass them at that station. Their time-table required them to pass each other two and a half miles west of Canastota, and such was their, almost invariable custom. Mr. Toby; who kept, the railroad house there, says that the trains do not usually meet there, and he did not know as they had that season. It was a thing unusual, and it seemed to have alarmed the conductor of the mail train; and Rose, the ticket and freight agent, seemed alarmed that the express train was to pass while the mail train was receiving and discharging its passengers. ■ The flagman, Weldon, says he was so flustrated and confused, he could not tell how long the mail train did stop. It was an occurrence that seemed to have alarmed Mr. Toby, who was familiar with all the dangers to be apprehended, and he was on the alert. Rose, the ticket agent, gave special instruction to the flagman. He sent Reese, the baggage-man, around the south side of the mail train, to see that no one got on the south track. These two brakemen, Reals and Waterbury, saw the express train coming, and seemed fully to appreciate the danger. They voluntarily, without any directions, placed themselves on the south side of the platform of their cars, to prevent persons getting off on that side; and Waterbury says he showed persons off the north side until he saw Miss White—who had got off on the north side—was passing around behind the cars to cross the track, and seeing her danger, he started for her; but fortunately, Mr. Toby saw her, and running after her, caught hold of her, and drew her back when within three feet of the south track; "and that instant,” says Mr. Toby,'" the express train came.” The sequel demonstrated that these persons were not unnecessarily agitated in regard to the apprehended danger from the express train. If the deceased and her daughter knew that the express train was coming, it would have been a mere piece of recklessness in them to have got off on the south side. They did not know it, and therefore, had no reason to apprehend it; and certainly the deceased was no more negligent in getting off the train on this side than on the other side, had not the express train been running in. The ground was smooth and hard where they got off, and there was a space between the north and south track, of over seven feet in width, where the .passengers land who get off the down trains from the south track. It may have been* and I am inclined to think it was, negligence in these ladies to get off while the train was in motion; and I think that we should hold that they assumed the risk of safely landing themselves from the cars. They did safely discharge themselves from the cars, and would have been all safe, but for the unexpected approach of the express train. It was dertainly not unlawful for them to get off the south side, and they were not negligent in doing so, unless they had reason to expect a train to pass on the south track. Whether they were negligent or not depends upon the question whether they had reason to apprehend danger.

Now it seems to me, if they had been familiar with the locality and known the ground, they were not negligent in getting out on the south side; but these ladies were strangers there, and for aught that a ppears, were not aware that there was another track south of the one they were on. Was Miss White, the music teacher, negligent in attempting to cross the track at the time and in the manner she did ? She had been accustomed to come upon this train, and cross the railroad to go to her music class, and knew that she had no reason to expect any train from the west at that time. She was not careless, because she had no warning of danger, and yet she would, beyond doubt, have been killed, if Mr. Toby had not seized her and pulled her back just at the instant he did. And so young Fowler, who got off on the south side, would very likely have been killed, if Mr. Toby and the flagman had not warned him of his danger in time to make his escape.' Were they negligent in attempting to cross the track after they were safely landed ? This depends upon many circumstances. They certainly were in great danger to remain where they were. The engineer of the express train swore that it would be difficult to stand where they got off, between the trains, when the one was in full motion, although he thought it barely possible. How, it does not appear from the evidence, when they first learned the approach of the express train, whether before or after they had started to cross the track; if after, then it were safer to keep on. It does not make much difference, I apprehend, whether it was before or afterward. If they saw it as soon as they got upon the ground, they can hardly be charged with negligence in their best attempts to escape danger. Here was the express train coming towards them at the rate of thirty to forty miles an hour. Here was in their reach the train from which they had just alighted, and there was no escape that way unless they got back upon that train which had been increasing its speed. This could not have been done probably if they had tided. There certainly could have been no question in regard to their negligence had they been killed in attempting to get back to the train from which they had just alighted. Had they stood still they would very probably have been killed. If they saw the whole of their danger after they landed, I am not prepared to say that the course they took was not the wisest. Had the mother but time to have taken one step more, and the daughter two, they both probably would have been sayed. But they had no time to reason, and were undoubtedly greatly frightened, and if they did not exhibit sound judgment, or what we may think such, now in coolly looking the matter over, it is not such negligence as will deprive them of this action. It is not negligence when a person uses his faculties the best he is capable of under the' circumstances. They were not negligent in remaining in the car as long as. they did, unless the station was announced, and there is a conflict in the evidence in regard to this question which belonged to the jury to determine. There is also considerable discrepancy in the testimony as to the speed with which the' train was moving when they got off, and General Messanger says they had started with a slow motion, and others say that they were at the speed of from five to eight miles an hour, and then again, as to the time of the stop, the evidence varies from thirty seconds to two minutes.

From all these facts and circumstances to which I have adverted, and many others, which, are .to.be found in tlie case, the deduction- of negligence or 'not- is to be ascertained. It is an inference to he drawn from a pretty broad field of facts and circumstances, and which legitimately belonged to the jury. It was a fit case to submit to the jury. It was so-submitted, and they have found, from their verdict, that the deceased was not negligent. The supreme court, who had the right and were asked to set aside this, finding of the jury, by their refusal, have approved it. If there was nothing to submit, I think it will demonstrate that both the jury and an intelligent court, which reviewed their finding, committed a pretty gross blunder; the one in rendering a verdict,- and the other in sustaining it. This court has no power either to approve or disapprove of the verdict: all this court can determine is, whether as matter of law there is any. aspect in which the case can he considered, which would justify, a verdict for the plaintiff;. but the rule is, that if this rests in any degree of doubt, then the case must go the jury for their verdict. They hold in- Connecticut that negligence is so peculiarly a question-of fact, that it shall be left to the jury, even on a conceded state of facts. 19 Conn. 566; 2 Smith & Bates’ Am,. Railway Cas. 114. There was no error committed in leaving this question of negligence to the jury. The general proposition was submitted on the motion for a nonsuit that the evidence was not sufficient to entitle the plaintiff to recover, but it involved only the three propositions we have considered.

The point was also taken that the complaint did not state a cause of action; but the point is not made on this appeal, and there is nothing in the proposition, and it' is not necessary to consider it. The first two propositions of the defendant’s counsel, in his request to charge, are settled by this court against the defendants in the case of Oldfield v. N. Y. & Harlem R. R. Co. 14 N. Y. (4 Kern.) 310. That case holds that no proof of pecuniary or special damage to.the plaintiff or next of kin, in consequence of the death, was necessary to sustain the action. That case also holds that the existence of a widow to share in the damages, is not necessary to sustain the action; that the action lies in every case where the deceased could have sustained an action for the injury had she survived. The case of. Quinn v. Moore, 15 K. T. 432, also affirms the latter proposition. "

■ The third and fourth propositions in the defendant’s requests to charge, involve simply tjie questions of negligence ón the part of the deceased and the defendants, which we have already considered. The fifth proposition was charged as requested. The case of Oldfield v. N. Y. & Harlem R. R. Co. 14 N. Y. (4 Kern.) 310, holds that it would have been an error for the judge to charge the latter branch of the sixth proposition, and it is not important, therefore; to inquire.whether the first portion of the proposition is right or not; a request to charge the jury should be in such form that the court may charge in the very terms of the request, without qualification. Carpenter v. Stilwell, 11 N. Y. (1 Kern.) 61. The judge is not required to separate a proposition of this kind and pick out what is good and refuse the rest. There was no error, therefore, in the refusal to charge the sixth proposition. But 'there is another answer to all these propositions. They were submitted as a series of propositions for the' judge to charge, and there.is but a general exception which states that the defendant excepted to the judge’s refusal to rule and decide as requested in the foregoing propositions. How,, as several of the propositions are clearly erroneous, this general exception presents no question for review in this court. Caldwell v. Murphy, 11 N. Y. (1 Kern.) 416; Jones v. Osgood, 6 N. Y. (2 Selcl) 233; Hunt v. Maybee, 7 N. Y. (3 Seld.) 266, 273.

There are several answers to the defendant’s objections, that the complaint did not state the names of the next of kin, &c. In the first place, it is not necessary to state them, and in the second place, the objection cannot be taken on a motion for a nonsuit. If the defendant had desired to have the complaint more specific in this respect, his proper way was to move to have the complaint made more specific. And in the third place, as this objection was taken on the motion for a nonsuit, it could not prevail, for this court has held in the two cases of Quin v. Moore and Oldfield v. N. Y. & Harlem R. R. Co., above referred to, that the action depends on the right of the injured person to maintain an action for the injuries if he or she were living; and that the action lies in every case where the deceased could have maintained an action, were he or she living. This certainly "settles the question that who are the next of kin is not material, so far as the right to maintain the action is concerned.

The objection taken to the evidence of Davis and Windecker cannot avail the defendant. The objection is a general one to the whole evidence. The most of this evidence was certainly wholly unobjectionable, and consequently the objection goes for nothing. If the counsel had called the attention of the judge to a particular portion of this evidence, by objecting to that specifically, very probably he would have excluded it. It is enough, however, that having objected to this entire evidence in gross, his objection cannot prevail for that reason.

The defendant’s counsel proposed to ask the witness, Rose, whether this train stopped ample time for all the passengers to get off, including these ladies. This evidence was properly excluded. It presented one of the issues in the cause which the juiy were to determine from all the evidence in the case, and the opinion of' the witness was not competent evidence. It did not involve a matter of scientific opinion, or where the opinion of experts was competent. Cook v. Brockway, 21 Barb. 331; Morehouse v. Mathews, 2 N. Y. (2 Comst.) 514; Merritt v. Seaman, 6 N. Y. (2 Seld.) 168; Jeff. Ins. Co. v. Cotheal, 7 Wend. 72. This witness had stated the time of the stop to be from one and one-half to two minutes, while others had stated it to be thirty seconds to a minute; and there were facts in the case upon which the jury were called upon to decide this question of fact. It is sufficient, however, that the evidence was not competent, for the opinion of the witness was not evidence upon such a subject. It was not competent for the defendant to prove by Cole and Woolever, although they were proved to have had experience in railroading, that in their judgment it was safer to run into the station, and discharge the passengers, than to stop either east or west of the station. It was a matter where the opinion of those men was not evidence. 21 Barb. 331; 2 N. Y. (2 Comst.) 514, 6 N. Y. (2 Seld.) 168; 7 Wend. 72.

The offer certainly went no further as a proposition, than to give the opinion of these men upon that subject, and was so treated and understood upon the trial. It was said by this court in the case of Daniels v. Patterson, 3 N. Y. (3 Comst.) 47-51, that before a party excepts on account of the rejection of evidence, he must make his offer in such plain and unequivocal terms, as to leave no room for doubt about what was intended ; and if he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist in a court of review upon the construction which is most favorable to himself, unless it appear that he was so understood by the court which rejected the evidence. The offer was treated and understood upon the trial, as but an offer to have the opinion of these men given to the jury upon that subject, and this it seems to me is but a fair construction. There is not a single fact stated which is offered to be proved to show that it was safer to go into the station; and besides, the offer of proof is based upon the distinct ground that these two witnesses were experienced men in railroading; Cole having been shown to be a conductor some eight years, and Woolever being an engineer upon the express train.

There is, however, another perfect answer to this offer of evidence, in any view which may be taken of the offer. The evidence was incompetent, as not being within the issue. There is not a single allegation, in the complaint, that it would have been safer to have stopped the mail train either east or west of the station. Dor is there any allegation that it was negligence for the conductor of that train to run into the station. Sor did the plaintiff adduce a single particle of evidence tending in the least to show that it was safer to stop short of, or go beyond, the station, nor was any such claim, presented on the trial. The simple issue to be tried was, whether what was done afforded evidence of negligence, and not whether it would have been more negligent to have done something else. It is never error to confine the proof to the issue to be tried.

There are no other questions in the case; and where a trial and general verdict have been had, this court only deals with the questions of law, upon exceptions duly taken. We cannot consider whether the damages are excessive, or the verdict is against the weight of evidence. 14 N. Y. (4 Kern.) 310.

A majority of the judges concurred. 
      
       See affirmance, reported at p. 131 of vol. 1, of tills series.
     
      
       In reference to the obligation to look and listen for an approaching train, which is imposed on passers by, compare Beisigel v. N. Y. Central R. R. Co., 40 N. Y. 9, and cases cited; Hackford v. The same, 13 Abb. Pr. N. S. 18, and note.
     
      
       Followed in Newman v. Cordell, 43 Barb. 448, 459.
     