
    Ernst, executrix, &c. vs. The Hudson River Rail Road Company
    Where, in an action to recover damages of the defendants for causing the death of another by their negligence, the defendants move for a nonsuit, on the ground that the negligence of the deceased contributed to produce the injury, which motion is granted, to justify the granting of the motion — if it does not appear whether it was granted for the reason specified, or upon the ground that the defendants were not guilty of negligence, or upon both grounds —it must be seen that the evidence in favor of the defendants was so clear, on one or the other of these grounds, that a verdict for the plaintiff would have been set aside as unwarranted by the evidence.
    Where a rail road company omits to ring a bell, as required by law, on approaching a street-crossing with a train of cars, it amounts to a neglect of duty or negligence — on the part of the company; and although such omission will not absolve one who is driving across the track, at the time, from taking proper precautions, yet if in an action against the company for damages occasioned by a collision, the jury should be satisfied, upon reasonable evidence, that the sound of the bell would have attracted the plaintiff’s notice, and enabled him to avoid the danger, it seems it is a fair question for the jury to determine, whether there was such freedom from negligence, on the part of the defendant, and such want of care, on the part of the plaintiff, as will defeat the action. And their verdict either way will not be disturbed. Gotod, J. dissented.
    MOTION, upon exceptions, for a new trial. The action was brought by the plaintiff, as executrix of Henry Ernst, deceased, to recover damages of the defendant for causing the death of her testator, by negligence. The cause was tried at the Bensselaer circuit, in May, 1859, before Justice Gould and a jury. The following facts appeared in evidence, on the trial: For half a century there has been a public highway leading from Sand Lake to the city of Albany, passing through the village of Bath, and over the Hudson river by what is known as the Bath ferry. The defendant, as was admitted by the pleadings, operates the Troy and Greenbush Bail Boad, which is located on the east bank of the Hudson, and crosses this public highway at Bath. The rail road crosses the highway upon the same level. The company has a station house at Bath, located east of the rail road track and just north of the highway leading to the ferry, and ordinarily has a flagman stationed at the crossing. When the accident happened, the deceased resided in the eastern part of the county of Rensselaer, some 14 or 15 miles from Bath. His family consisted of a wife (the plaintiff) and six daughters. On the 29th day of December, 1855, the deceased, having a pair of horses attached to a sleigh, was passing upon this highway in the direction of Albany. On arriving at Bath, he stopped at a tavern, about 158 feet east of the rail road track. As the ferry boat was ready to start, and was only waiting for him, the deceased unhitched his team, seated himself on the sleigh bottom, facing the west, and drove at a moderate pace directly towards the boat. Just as he approached the rail road crossing he came in collision with the defendants’ train of cars moving south, and received an injury that caused his death,
    The deceased was a teamster, and had for more than 25 years used the road to Albany, crossing at the Bath ferry, and he crossed there very frequently. On the morning of the accident, he went to Bath by the Sand Lake road, from which the cars were visible, if looked for, as far as the nail factory, some miles distant, and might be seen nearly all the way from there to the Bath crossing. He stopped at Dearstyne’s tavern till the ferry boat was ready to start; he then came out hurriedly, and drove towards the ferry boat at a moderate pace—either a walk or a slow trot. He had a two-horse team and an empty sleigh. It was cold weather, and he had a shawl about his face. He had no bells on his horses. In going from the tavern to the boat the road is nearly level, or a little ascending, for nearly 158 feet, when it is crossed by the rail road track. For the whole of this distance, except in passing the station-house, a building 12 or 13 feet wide, there is no obstacle to seeing a train approaching from the north. The approach of a train can he heard, without bell or whistle, from one to two miles. The noise of that train had been heard by one Ostrander, some time before the deceased left the tavern. When the deceased was at the middle of Mineral street, 125 feet from the track, Ostrander, whom he had nearly run into, heard the noise of the coming cars, looked around, and saw them coming. The cars were moving at the rate of from 30 to 40 miles an hour. Although in a situation to hear, no witness who was examined heard the bell or whistle before the collision. This «i omission on the part of the engineer in charge of the train attracted the attention of the ferryman, at the time of the collision. Miller, the regular flagman, was absent, and no flagman or other person was present, to warn travelers of the approach of the train. The flagman is ordinarily there for the purpose of signalling the train when to stop for passengers.
    Shortly before the collision, and as the deceased approached the track, some person on the ferry boat made signals, and motioned for the deceased to come on. At the same time there was other hallooing in the street, near the crossing. Other motions were made, one man motioned with his hand, waving it towards the east. The bystanders understood the meaning of these signals differently. One thought it meant to keep off; another thought it meant to come on the boat; while others did not understand the meaning at all. The approach of the train was perceived by several persons near the crossing; some saw it; some heard it. The witnesses did not observe whether the deceased looked up or down the rail road track, as he approached the crossing, and it did not appear that he looked in either direction.
    The appointment of the plaintiff as the .executrix of her deceased husband was duly proved.
    The judge declined to submit any question of fact to the jury, and directed a nonsuit. He ordered the plaintiff’s ex- - ceptions to be heard in the first instance at a general term.
    
      JR. Par mentor, for the plaintiff.
    
      T. M. North, for the defendants.
   Hogeboom, J.

In this case the judge nonsuited the plaintiff. The nonsuit was moved for on the ground that the negligence of the deceased contributed to produce the injury complained of. It does not appear whether it was granted upon that ground, or upon the ground that the defendants were not guilty of negligence, or hath. As the judge refused to submit the case to the jury, it must appear that the evidence in favor of the defendants was so clear'—on one or the other of these grounds—that a verdict for the plaintiff would have been set aside as unwarranted by the evidence.

If the evidence established the fact that the bell of the engine was rung, at the distance required by law, before reaching the crossing, I should incline to sustain the nonsuit. The deceased could scarcely have failed to discover the approach of the train, had he looked up the track, as he had sufficient time and opportunity to do. There was nothing to obstruct his vision until he got very near the track. There was nothing done by the defendants to mislead or confuse him, unless it was the omission to ring the bell. He sat in the bottom of his sleigh. He was bundled up with a shawl, or something else, about his face, which very probably affected his hearing. He was not observed to look up or down the track, although he might have done so. He was probably intent upon reaching the ferry-boat, which was about to start. The crossing was a much frequented one, with which he was familiar. He drove towards the ferry boat apparently unobservant of, or inattentive to, the approach of the train, which was both seen and heard by several other, persons. These facts go very far towards establishing, prima facie, a want of care on his part, which should defeat the action.

And yet there are one or two circumstances in his favor, entitled to consideration on the question of negligence. One I have already casually mentioned, to wit: the defendants’ omission to ring the bell, except at the moment of collision. I think we. must assume, upon the present evidence, that such was the fact. Persons who were in a situation to hear, and would probably have heard the bell, if rung, testify to the fact that they did not hear it. This is, it is true, only negative evidence, and of little weight in comparison with positive evidence to the contrary; hut there is no such positive evidence ; and I regard it as strong enough to overcome the legal presumption against a violation of duty. This being so, it established a neglect of duty—negligence, on the part of the defendants. And it may help to excuse the decedent from the imputation of negligence; for where a bell is required to be rung, the object of it is to notify and warn travelers of approaching danger. The traveler has, I think, a right to rely to some extent at least, upon its being rung. The omission to ring it does not, of course, absolve him from the necessity of other proper precautions. But if the jury should be satisfied, upon reasonable evidence, that the sound of the bell would have attracted the notice of the decedent, and enabled and caused him to avoid the danger, I am not prepared to say that there was such freedom from negligence, on the part of the defendants, and such want of care on the part of the decedent, as defeats the action. And under the evidence, I think this was a fair question for the jury, and that their verdict either way would not be disturbed.

There is another circumstance which appears to me not without some force in exculpating the decedent, if the jury took a particular view of the case. It is the signals or motions made to Ernst, when he was driving towards the ferry boat. They were intended, doubtless, as warnings not to attempt to cross the rail road; but it is possible he may have understood them as invitations to hasten to the ferry boat, which was about to start across the river. And though it is scarcely probable that he put that construction upon them, I cannot say that a verdict establishing that fact would be without evidence to support it. If he did so understand the signals made to him, then they were calculated to induce him to do just what he did do, and might naturally disarm a prudent person of the suspicion of danger approaching from another quarter.

These considerations have induced me to favor a new trial. I give my entire assent to the proposition that nonsuits in this class of cases, involving the question of negligence, are as proper as in any other, and I am quite aware that the sympathies of a jury are naturally inclined to those who suffer from these terrible accidents to such an extent as makes them sometimes forget the rules of law applicable to such questions. At the same time, the law has constituted them the chosen triers of disputed questions, of fact, and such questions arise not only where there is a conflict of evidence as to what actually occurred, but where there is a real and well-founded doubt as to the legitimate inferences to be drawn in respect to the existence of certain facts, from certain other facts clearly established by positive evidence. We must assume that in these, as in other cases,-jurors will not be guilty of a violation of duty, when they receive proper instructions from the court.

On the whole, though with some hesitation, I think the nonsuit should be set aside, and a new trial granted, with costs to abide the event.

Peckham, J. concurred.

Gould, J.

dissented, for the reasons assigned by him in his dissenting opinion in McGrath v. The Hudson River Rail Road Company, ante p. 156. In addition to which, the following reasons were given, for his judgment in the present action. “In this case, a man, muffled around his neck and ears, seated in the bottom of his sleigh, knowing all about the rail road crossing at that place, without paying any attention to the fact whether or not a train was coming, drove his horses towards the track, so that the locomotive and the horses came together, without the horses having been at all on the track (for an engineer to see,) and the team was whirled around sidewise; the man was thrown out, and so injured that he died. About one third of a mile of the rail road was in plain sight (if he chose to look) for the whole distance after he left the tavern shed, except some fifteen feet of the way. If he did not see the road, and the coming train, it was because he did not look; if he did see it, he took the risk of driving on the track in front of it. In either event, he was, beyond all doubt, careless, and contributed by his carelessness to the injury.”

[Albany General Term,

March 5, 1860.

Gould, Hogeboom and Peckham, Justices.]

Hew trial granted.  