Tyler v. New York & New England Railroad

W. Allen, J. The evidence discloses the circumstances of the collision, and shows that the plaintiff exercised some degree of care. He checked the speed of his horse at a distance of about one hundred feet from the railroad; he looked to see if the track was clear; he saw the approaching train, and attempted to avoid it before he reached the track. Whether he exercised ordinary care was plainly a question for the jury, unless there was some undisputed fact so obviously inconsistent with ordinary care on his part that the court can say that no reasonable question was presented for the jury to pass upon. There are three circumstances which the defendant contends are, as matter of law, inconsistent with due care. 1. The plaintiff looked to see a house pointed out to him by his companion at the side of the street as they approached the [242] railroad. The house was hidden from their view by intervening buildings until they were over the brow of the hill, which was about one hundred feet from the track. The plaintiff testified that, when the house came into view, the other boy showed it to him; and that he looked at it, and turned to his horse. It does not appear that the plaintiff’s attention was not continuously upon the crossing, nor that his perception of it was appreciably interrupted, nor that the approaching train could have been seen from the place where he then was, nor that the train was not seen as soon as it came in sight. The jury may well have found that the act was not negligent, and that it did not contribute to the injury. 2. The plaintiff was riding in a wagon, and did not stop his horse to listen for the cars. The defendant contends that this fact should, as matter of law, preclude the plaintiff from recovering in this action. The fact is not conclusive evidence of negligence; it was for the judgment of the jury, in connection with its circumstances. 3. The defendant relies upon the fact that, after the plaintiff was aware that the cars were coming, he did not stop his horse in time to avoid a collision. It is argued that, as the plaintiff knew he was about to cross a railroad, it was his duty to watch for cars, and to drive in such a manner that he could avoid a collision if a train appeared; that he had no right to go so near the track that he could not stop before reaching it, until he had assured himself that there was no danger. The true proposition is, that the plaintiff was bound to use reasonable care to avoid getting into a position in which he could not escape a collision. The fact that he did find himself in such a position is not conclusive evidence that he was there by his own negligence. He may have been there in consequence of the negligence of the defendant; and it may have been without the negligence of either party. Whether he was there in the exercise of due care must depend upon the evidence of care drawn from facts which must be found by the jury, and is, we think, in this case, a question for the jury. It is not contended that the plaintiff was in fault in not avoiding the cars after he perceived them. Whether he used due care to know if a train was coming, and to be in a condition to avoid it, were questions which depended [243] upon inferences from facts to be found by the jury. The age and experience of the plaintiff; the degree of watchfulness and care actually exhibited by him; the speed at which he was driving; his distance from the track when his attention was called to the cars, whether it was ten or forty-six feet; the obstructions to a view of the track on which the train was approaching; the negligence of the defendant as affecting the conduct of the plaintiff, whether it consisted in the absence of a flagman, or in not ringing the bell or sounding the whistle, or in the speed of the train, or in all combined, — were among the facts to be found by the jury, and from which, in connection with the particular facts and manner of the collision, they only could find the fact of due care or of negligence on the part of the plaintiff. The jury have found that the negligence of the defendant was the cause of the injury, and that there was no contributory negligence of the plaintiff; and we cannot see that that finding was not upon sufficient evidence. ¡Exceptions overruled.