
    HOLLENDER v. N. Y. CENTRAL, &c. R. R. CO.
    N. Y. Common Pleas ;
    
      General Term, April, 1887.
    
      1. Negligence ; backing train at night into depot.] Proof that defendant, a railroad company, backed a train, at night, into a dark freight depot, without light or signal of any kind, so that it came go suddenly upon the plaintiff’s servant, who was lawfully in the depot, that he was unable, either from fright' or want of time, to get his horses out of the way, and the train ran over the horses and killed them,—is sufficient proof of negligence to sustain a verdict for the plaintiff in an action for the loss.
    2. Trial; reception of opinion evidence, when not error.] Where one party, against objection, is allowed to ask the opinion of a witness on a point on which opinion evidence is not competent, an exception by him to allowing the adverse party to put the same question to one of his witnesses, is not well taken.
    
    3. Witness ; question calling for opinion.] It is not error to allow a question whether a witness could have heard a whistle or a bell, if there had been one, where it is understood to be an inquiry as to whether there was anything to interfere with the sound reaching the ear of the witness, and not as calling for his opinion.
    4. Bailroad signals.] It is for the legislature, and not for a jury, to determine what signals a railroad shall be required to give; and, .therefore, in an action against a railroad company for negligence, it is error to instruct the jury that they are at liberty to determine what signals ought to be adopted, and to regard the omis.sion of them as an act of negligence.
    5. Same; proper charge to jury.] But the jury may decide whether those in charge of the train did all that they ought to have done to give notice of its approach; and, hence, it is not error to charge that it is for the jury to say “whether the defendants did what was necessary to protect the plaintiffs from injury,” in reference to the management of the train.
    6. The case of Dyer v. Erie Ry. Co., 71 N. Y. 228, explained.
    Appeal by the defendant from an order of the City Court of New York, affirming a judgment for the plaintiff, entered upon a verdict at the trial term of that court.
    
      Frederick Hollender and another sued the N. Y. Central & Hudson River R. R. Co. for damages for the loss of two horses alleged to have been killed by the negligence of the defendant’s servants in the management of a freight train.
    Plaintiffs’ servant, about seven o’clock in the evening, drove their truck to defendant’s freight depot, and backed it up to a car standing upon a switch track just outside the entrance to the depot to unload goods, swinging the horses’ heads round so as to be clear of an adjoining track. Having loaded, he turned the horses, and started them ahead a little, so that they were on the adjoining track, and while he was thus engaged, a train of freight cars suddenly backed into the depot upon the horses and killed them.
    Other circumstances appear in the opinion.
    At the trial, Manning, a truck driver called by the defendant, testified, against objection, to his familiarity with the locality, and to the ability of a driver exercising proper skill and diligence to have avoided the ■ accident. After-wards plaintiff called Jacobs, another truck driver, and was permitted, against objection, to question him upon the same point, and defendant excepted.
    Other material facts appear in the opinion.
    
      Frank Loomis, for the defendant, appellant.
    
      John E. Brodsky, for the plaintiffs, respondents.
    
      
      S. P., Abb. Tr. Brief, 54, parag. 11, and note.
    
   Van Hoesen, J.

There was ample proof that the plaintiffs’ servant was free from negligence, and sufficient proof of the negligence of the defendant, to require the submission of the case to the jury. The evidence made it clear that the defendant, in the night-time, was engaged in backing a long train of nine freight cars into the freight depot at St. John’s Park, where it was dark; that the dummy engine was at the end of the train remote from the depot; that there was a curve near the entrance; that the movement of the train was nearly noiseless ; that there was no light at the end of the train that was entering/ the depot, and no pne to give notice of the approach of the train; that the train stole noiselessly upon the plaintiff’s servant, who was lawfully in the depot, and came upon him so suddenly that he was unable, either from fright or want of time, to get his horses out of the way, and that the result was that the train ran over the horses, and killed them. If the defendant had gone to the expense of a lamp, in all probability it would not have been the defendant in an action for carelessly killing the horses. The jury, upon the evidence, was justified in finding that the defendant’s carelessness in running its train in the dark, and without notice by light, noise or voice that it was entering a dark depot, where man and teams were known to be, was the sole cause of the loss that the plaintiff sustained (Dyer v. Erie Ry. Co., 71 N. Y. 228, 231).

The exception to the testimony of Charles Jacobs, is not tenable. The defendant asked its witness, Charles Manning, the very question that if objected to when it was propounded by the plaintiff to his witness Jacobs. It was for the purpose of meeting the opinion of the witness Manning with the opinion of the witness Jacobs that the plaintiff, on the rebuttal, asked the question to which the defendant objected. If opinion evidence was incompetent the defendant ought not to have set the example of introducing it (Scattergood v. Wood, 79 N. Y. 263).

Against the objection of the plaintiff the defendant succeeded in inducing the couyt to receive opinion evidence as to the practical ability of so managing the team that they could have been saved. Having thus established the law of the case, the defendant cannot be permitted to object that the court continued to apply it in every stage of the trial.

There was no impropriety of which the defendant can complain in the allowance of the question, “ could you have heard a whistle or a bell, if there had been one V’ It was intended to ascertain whether there was anything to prevent the witness from hearing a signal. It was obnoxious to ■criticism as to its form, for it called for a conclusion upon a hypothetical state of facts, but it was understood to be an inquiry as to whether there was anything to interfere with the sound reaching the ear of the witness (Renwick v. N. Y. Central R. R. Co., 36 N. Y. 132, 133).

As I understand the charge of the judge, there is no merit in the exception to the instruction that “ it is for the jury to say whether the defendants did what was necessary to protect the plaintiffs from injury.” In my opinion, that instruction was neither intended by the court, nor understood by the jury, as making it a question whether the defendant was not chargeable with negligence, because it had not employed all the signals and safeguards that the jury might think condusive to the safety of the public. Of course, if it had been left to the jury to say what signals not required by law might advantageously be introduced, and if they had been told that they might find the defendant guilty of negligence if any of those safeguards were lacking, the instruction would have been erroneous. It is settled by a number of decisions that it" is a fatal error to instruct a jury that they are at liberty to determine what signals ought to be adopted, and to regard the omission of them as an act of negligence (See Semel v. N. Y., New Haven, &c. R. R. Co., 9 Daly, 321; Dyer v. Erie Ry. Co., 71 N. Y. 228 ; Houghkirk v. Delaware & H. Canal Co., 92 N. Y. 219 ; Cumming v. Brooklyn City R. R. Co., 38 Hun, 362).

The common law imposes certain duties upon those who conduct vehicles. The general duty is to manage the vehicle with the care that a man of ordinary prudence would employ. Whether the vehicle be large or small, likely or unlikely to do injury, slow in moving or rapid, its driver is bound to manage it with common prudence and cafe. As the likelihood of injury from its use increases, the care with which it should be managed must be increased. The common law prescribed no particular methods of exercising care, nor required any special safeguards, for the protection of those not using the vehicles as travellers. When railroads were introduced, the legislature, deeming the common-law requirements inadequate for the safety of persons who might wish to cross the track, saw fit to provide that a bell should be rung, or a whistle sounded, when ever a train approached a highway that traversed the railroad line. These signals are as well for the protection of the railroad company as for that of the public, for they warn travellers upon the highway not to endanger the lives of passengers upon the trains as well as their own lives by attempting to cross the track until the train has passed. But it is for the legislature, and not for a jury, to determine what signals a railroad should be required to give. If it were left to the jury, the railroad managers could never know what they ought to do in conducting their business, for juries would differ in their notions, and what one jury would pronounce a sufficient and proper safeguard might be regarded as utterly worthless by another. The consequence would be that no prescience could protect the railroad managers. They would never know whether they were negligent or not, until some jury had decided what safeguards they ought to have employed; ,and even after they had been mulcted in damages for negligence, it would be impossible for them to ascértain exactly what signals the jury thought ought .to have been .used. Hence the courts have uniformly held that it is error to tell the jury that they may find the railroad company negligent if they believe that there are safeguards that could have averted the injury if they had been adopted. In the Semel case the judge said, “If you think the defendant neglected any necessary precaution, whether in providing signals, or men at the stations for waving flags, you have a right to find that it was guilty of negligence; that is a matter within your discretion.” The law does not require the placing of men at the stations to wave flags. The charge was, therefore, erroneons on that ground, as well as for the reason that the judge afterwards said that the jury could find a verdict for the plaintiff if the defendant was guilty of negligence in anything the jury thought it was its duty to do.

In the Dyer case, the judge fell into a similar error, and the court of appeals therefore reversed a j udgment in favor of the plaintiff. But Judge Miller drew a distinction that I think ought not to be overlooked in this case. He said that the instruction would not have been erroneous if it had merely left it to the jury to say whether the train men ought not to have done something more than they did actually do, without leaving it to them to say what other signals ought to have been introduced. It is perfectly proper to allow the jury to decide whether the train was managed with common prudence and care, and whether the train men did all that they ought to have done, to give notice of the advent of the train. In this case, there is not a word in the charge that can be construed into a direction to the jury to find the company negligent if it did not use all the safeguards that they might think necessary. The mind of the . court was not engaged with anything not connected with the issue that was on trial. The main question, evidently, was one of contributory negligence. To that the greater part of the charge is devoted. At the close, the court said that to warrant a verdict for the plaintiff, “ you must find that this injury occurred through the fault of the defendant, or its servants.” Then followed a request by the plaintiff’s counsel for the instruction that “ it was for the jury to say whether the defendant had done all that was necessary to protect the plaintiff.” It is obvious that this referred to the management of the train that did the injury, and to nothing else. So understood, the instruction was not erroneous (Dyer v. Erie Ry. Co., 71 N. Y. 228, 233 ; Cumming v. Brooklyn City R. R. Co., 38 Hun, 362).

The judgment should be affirmed, with costs.

Larremore, O. J., and Daly, J., concurred.  