Havens v. . the Erie Railway Company

Grover, J. The questions argued by the counsel for the appellant, are those arising upon exceptions taken by the defendant’s counsel upon the trial, to the charge of the judge to the jury, and to his refusal to charge as requested. It appears from the case, that when the judge concluded his charge, to which no exception was taken, that the plaintiff’s counsel *298 requested him to charge that the deceased was not bound to stop, and look up and down the road unless there were signals given; and that if they heard no signals, they would have the right to think that there was no train within eighty rods, and the court so charged. The defendant’s counsel here asked the court to charge, that if the deceased might at any point within ten rods of the crossing have easily seen the approaching train nearly a mile off, he was bound to survey the space, or in other words, to look up the road, and if by omitting so to do, he lost his life, the plaintiff cannot recover. The court refused, and the defendant’s counsel excepted. This request of the defendant’s counsel must be read in connection with the propositions charged by the court upon the request of plaintiff’s counsel immediately preceding it. When so read, it is clear that the point in controversy between the counsel was, whether the omission to give the signals upon the train required by statute, excuses the traveler approaching the crossing from all obligation to look up and down the track, when that can readily be done, to ascertain whether trains are approaching, and whether the omission to use his eyes for that purpose constitutes negligence that will preclude a recovery for an injury received by a collision with such train. From the charge given, and the refusal to charge as requested, the jury must have understood the court as holding that the omission to give the signals did excuse the traveler from looking up and down the track, and that his omission so to do, was no obstacle to a recovery. At the time the case was tried, some doubt existed as to the law upon these points in this State. Opinions given in this court published in the reports, had laid down the law, as it was given by the judge to the jury in the present case; but a close examination of the cases in which they were given will fail to show that such was the doctrine of the court. On the contrary, the rule that any negligence of .the party injured contributing thereto will bar a recovery therefor has been uniformly adhered to. It may now be regarded as settled by this court, that a traveler approaching a crossing is *299 required to use his eyes and ears in looting, and listening to ascertain whether trains are approaching, irrespective of the question whether the signals required by statute are given upon the train, and that if an injury is received in consequence of his omission so to do, he cannot recover therefor. (Ernst v. Hudson R. R. Co. 39 N. Y., 61; Wilcox v. Rome & Watertown R. R. Co. id., 358.) The principle of these cases has been applied in several subsequent cases not reported. A further discussion of the principle or examination of the cases is unnecessary. The evidence in the case clearly made it the duty of the judge to charge upon these points. There was evidence tending to show, that by looting, the train could have been readily seen, and thus the danger avoided. The judge erred in refusing to charge as requested by the defendant’s counsel. He should have instructed the jury, that an omission to ring the bell, or blow the whistle, would not excuse the deceased from the observance of proper care on his part, and that this care required him to look for trains when he had opportunity so to do, while riding in the wagon; and that if the injury would have been avoided by his so doing, the plaintiff could not recover. The judgment should be reversed and a new trial ordered.