
    Alfred Webster, Respondent, v. The Hudson River Railroad Company, Appellants.
    Negligence. The negligence of defendant, whereby plaintiff was injured, being established by evidence, and there being no pretense, that plaintiff was guilty of any personal negligence, the negligence of a third party, contributing to the injuries, furnishes no excuse for the negligence of defendant, and no reason why he should not respond in damages. Hence, in such case, the refusal of the judge to charge, that, if the jury should find that the injuries were in part caused by the negligence of a third party, the plaintiff could not recover from defendant, was not error.
    The defendant is a railroad corporation, engaged in the transportation of freight and passengers, by steam power, along the east shore óf the Hudson river, between Hew York and Albany.
    The plaintiff, on the 19th April, 1860, was a passenger on a through ■ ticket from the city of Hew York to East Chat-ham, by steamboat to Hudson, and from Hudson to Chatham by the Hudson and Boston railroad. The testimony shows that the Hudson and Boston railroad is a railroad starting from the steamboat dock in Hudson, seven hundred or eight hundred feet west of the Hudson River railroad track, and runs eastwardly directly across the Hudson River railroad track. This road did a very large business west of the Hudson River raih'oad. Their track had been laid and their business had been going on nineteen years. When the plaintiff arrived by the boat at the Hudson steamboat dock, on the morning of- April 19th, 1860, between four and five o’clock, he found the train of the Hudson and Boston road standing within fifty feet of the dock to receive him. He was called upon by the servants of the road to enter, and he and the other passengers got into the baggage car to ride eastward to where the train was more fully made up. The train at this time consisted of an engine, a tender, a freight car, and a baggage car.. The train started from the usual point and at its usual time, and, while crossing the track of the Hudson River River railroad, a train on that road coming from Hew York toward Albany struck the baggage car in which the plaintiff had been placed by the employees of the Hudson and Boston road, and seriously injured the plaintiff.
    The negligence of the defendants was established by the finding of the jury, and is not in question here. The only questions arise upon the refusal of the judge to charge, that, if the Hudson and Boston road, on whose train the plaintiff was a passenger, was also guilty of negligence, the plaintiff cannot recover against the defendants. The defendants requested the judge to charge the jury, “ that, if the negligence of the Hudson and Boston Railroad company, its agents or servants, caused, or contributed to cause, the collision, and consequent injury to the plaintiff, he cannot recover,”, which was refused, and the defendants excepted. The same principle was presented in several other different requests, which the judge also refused to- charge. The jury found a verdict for the plaintiff, the judgment upon which was affirmed by the General Term. The defendants now appeal to this court.
    
      J. H. Reynolds, for the appellants.
    
      M. I. Townsend, for the respondent.
   Hunt, Ch. J.

The plaintiff was properly in the cars of the Hudson and Boston Railroad company, on his way to Chatham. It is not pretended, that he was guilty, of any personal negligence,- or that it was in his power, by any means, or in any degree, to have prevented the collision by which he was injured. Like every passenger in a train of cars propelled by steam, he was passive in the hands of the railroad company; unable to aid, if aid was useful, unable to delay or to hasten a train, incompetent, and not permitted, to regulate or examine its machinery. His personal safety was exclusively under the control of others. Of the company to whose care he had intrusted himself, he was entitled to ask the very highest degree of care and attention. Of all others, that ordinary care which all prudent people are bound to bestow in the management of their affairs. The jury have found, that the defendants were deficient in the use of such care, and I see no reason why they should not respond in damages. The “ imputation ” to the plaintiff of the negligence of another is based upon no sound principle. The fact, that the Boston road was also guilty of negligence, .furnishes, in law or morals, no excuse for the negligence of the Hudson River company, and no reason why they should not respond in damages. (Sheridan v. Brooklyn and H. R. R. Co., 36 N. Y. 39.)

In Chapman v. The New Haven R. R. Co. (19 N. Y. 341), and in Colegrove v. The Harlem & N. H. R. R. Co. (20 id. §92, the question now before us was distinctly presented, and in each case was decided in favor of the plaintiff. In the case of Brown v. N. Y. C. R. R. Co. (32 N. Y, 597), the question was somewhat discussed, but it did not exist in the case. There, the justice at the circuit had charged, that the plaintiff was responsible for the negligence of the driver of the stage in which she was riding, and the jury had found that there was no negligence on the part of the driver. The question of imputed negligence could not, therefore, have been decided in that case. The case of Thoroughgood v. Bryan (8 Com. B. 115) was cited in several of the above cases. The facts in that case show a clear question of personal negligence to be submitted to the jury. Instead of .waiting for the driver of the omnibus in which he was riding, to draw up to the sidewalk, and there to permit him to alight, as he had a right to require, the plaintiff got out in the crowded street, and was at once, or soon, struck by an approaching omnibus. If there was negligence, the plaintiff was the negligent party, although the driver of his omnibus may have been negligent also in not stopping at qnce, or in not driving to the sidewalk. This case is no authority for the decision of a case like the present.

Upon principle and authority, this case was rightly decided below, and the judgment should be affirmed.

judgment affirmed.  