Ernst v. Hudson River Railroad — 32 How. Pr. 61

Majority

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COURT OF APPEALS.

Martha Ernst, Executrix of Henry Ernst, decased, appellant agt. The Hudson River Railroad Co., respondents.

Headnote

If a traveller in crossing a railroad, is warned of the approach of an engine by the customary signals,' or if by other means,, he is made aware of its proximity, it is his duty to avoid exposing himself to injury.

If he advances on the open highway, with no cars in view, and no indication of ' their approach, either by signal or otherwise, he is at liberty to pursue Ms way without incurring the imputation of breach of duty to a wrong-doer.

The only condition of the right to redress for a wrong of this description is, that the party aggrieved 6e free from culpable negligence ; and he is not chargeable with such negligence, unless he fails to exercise ordinary care and vigilance, to avoid the injury of wMch he complains.

Ordinary care, skill and diligence, is such a degree of care-as men of ordinary prudence, under similar circumstances usually employ.

The degree of care wMch men of common prudence would he likely to observe in a given ease, must be determined with ¡reference to all the attendant eircv,instances.

The citizen who, on a public highway, approaches a railway track, and can neither see nor hear any indication of a moving train, is not chargeable in law with negligence, for assuming that there is no oar sufficiently near to make the crossing dangerous.

In this case held: that the defendants not only misled the plaintiff’s testator by not exMbiting the flag at the crossing of the railroad, in accordance with the uniform custom when an engine was near, but also by approaching the highway illegally, neither sounding the whistle or ringing the beU as they advanced. This was an act in open defiance of the public statute enacted for the protection of the traveller.

It is not the policy of the law to favor those who deliberately violate its mandates, nor is it the duty of the courts to invent excuses for wrong-doers, or to palliate the guilt of reckless homicide. Our statutes for the protection of life are to be obeyed, and when they are broken and defied, responsipihty is not to he evaded by imputing blame without proof, to him who suffers death, for the sake of sMelding those who inflict it.

It is not true that a traveller on a public thoroughfare is guilty of culpable negligence, as matter of law, if he does not stop to listen, or look up and down the track before he goes over a crossing of a railroad.^[1] Whether such an omission is culpable, depends upon the facts and circumstances of each particular ease.

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March Term, 1866.

Appeal from judgment of supreme court in the third judicial district, sustaining a non-suit on the trial at the Rensselaer circuit.

The action was brought by the plaintiff as the widow and executrix of the testator, for damages sustained by killing her husband at the village of Bath, on the 29th day of December, 1855.

The suit was commenced in 1856. The first trial was before Mr. Justice Gould, who non-suited the plaintiff. The case was heard at the general term, before Judges Hogebooii, Peckham and Gould. The non-suit was set aside, and

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a new trial was granted; the opinion of the court being delivered by Judge Hogeboom, and Gould, J., dissenting ( 32 Barb. 159 ).

The second trial before Judge Hogeboom, in February, 1861, resulted in a verdict for the plaintiff; a motion for a new trial, on the ground that the verdict was against evidence, was made and denied at the special term. An appeal was taken from the judgment as well as the order, and heard on a case and exceptions before Judges Wright, Hogeboom and Gould. Both were affirmed at the general term, the opinion of the court being delivered by Judge Wright, and Gould, J., dissenting.

The defendant appealed, and a new trial was granted here by a divided court. An imperfect and erroneous report of the case will be found in 24 Hozo. Pr. Pep., 97.

On the last trial in November, 1865, the plaintiff was non-suited, and the judgment was affirmed pro forma in the court below.

The facts were much more fully developed than on the previous trial, and material additional evidence was given to repel the proof relied on by the defendant to impute negligence to plaintiff’s testator. At the close of the evidence, a motion was made for a non-suit, which was granted in deference to views supposed from the head notes of the case, as reported in 24 Howard, to have received the sanction of this court.

The plaintiff having been non-suited, the truth of such facts as he proved by disinterested and credible witnesses, is to be assumed, without reference to contradictory evidence by the defendant; and. the material facts thus established are as follows:

The testator resided in the county of Rensselaer, about fifteen miles from the city of Albany, which was his market town. His family consisted of his wife and six daughters. He was about forty-five years of age. He was an active and industrious man. His health was good; his habits were regular, and his vision clear. He was accustomed to the use of horses, and had been a teamster on the road from Sand

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Lake to Albany, for twenty-five years. He was familiar with the ferry, the railroad, the signals, the station and the locality.

The crossing at whichhe(was billed is in the village of- Bath, near the river side. He was driving down Bensselaer street to the ferry landing, for the purpose of crossing to Albany. The railroad intersects that street at right angles. The highway he was travelling, and the ferry to which he was bound, had been used as such for more than half a century; and this was the point of convergence of the principal thoroughfares of Bensselaer, and the usual route of travel to Albany, by the ferry connecting this city with the village of Bath. Next east of the railway track is Broadway, a street sixty feet wide, which crosses Bensselaer street at right angles, being parallel with the river. On the south-east comer of these two streets is Dearstyne’s hotel, at which the testator, having rode some fifteen miles, stopped to warm before crossing the ferry, the morning being very cold. Vandenburgh, whose team was in front of his, stopped at the store, and on coming out drove down to the ferry boat. On looking back he saw Ernst get into his sleigh, turn his team and drive down toward the boat. This was a little before ten o’clock in the morning.

The distance from Dearstyne’s hotel to the railroad track was one hundred and twelve and a half feet, and about one hundred feet from there to the ferry landing. The descent from the hotel to the track was moderate, but from there to the ferry it was steep. Bensselaer street, like Broadway, was sixty feet wide. The station house was on the north side of Broadway, where it obstructed the view of the traveler as he approached near the track. After Ernst was killed it was removed to the appropriate place on the opposite side, where it does not hide the approach of an engine. The railroad track approaches the crossing from the north on a curved line, running on a level below the upland, and near the river side. There is an ice house on the river side of the track, which is thirty-six rods or five hundred and ninety- . four feet north of the crossing; from that point there is a

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sharp curve in the road to the north-east. There is no point in Eensselaer street, from Dearstyne’s down to the station house, where a man standing erect, and looking directly north, could see an approaching train before it reached the ice house. The only point at which it is possible to see this distance, is just before reaching the station. The elevated land between Eensselaer street and the ice house, and an intermediate park of trees, intercept the sound of an approaching train, and limit the range of vision. The ground within a hundred and fifty feet north of Eensselaer street, is twelve feet higher than the-level of the streets and railroad, and there the park commences, still further obstructing the northern view.

Ernst, when he stopped, had driven his horses round the front of Dearstyne’s hotel in Broadway, and in turning them round to resume his way, in Eensselaer street, he necessarily faced to the north, and had a full and open view of the track for twenty rods north of the crossing, which was the limit of the range of vision, not only at the intersection of Eensselaer street and Broadway, but also for a considerable distance westward toward the crossing.

As he looked north, at this, the natural point of observation, there was no train in view, and as he looked west, he saw that there was no flagman. Starting at first on a walk, his horses then took a slow trot, which they kept until they were near the station house. The ferry boat was about starting, when Simmons, who was standing near the crossing, seeing Ernst driving down, hailed to the ferryman to wait for him. Simmons then beckoned to Ernst to hurry on, as ' the boat was waiting for him. Signals were also made to him from the boat to come on. He started up his horses to a brisk trot, and just as they were within two or three rods-of the track, in full motion, the engine emerged from behind the station house, and simultaneously with the rush of the advancing train, Eouse, an old man who happened to be standing on the station platform, and Hunter, who stood on the stoop of the store on the south side of the street, hallooed to him from opposite directions; and the frightened

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horses plunged southward on the track, when the team was. knocked down by the engine, and Ernst received the blow of which he died. The defendant’s fireman admits that he. saw the testator attempting ineffectually, to keep back his horses.

It was. proved.that tins was a station for a flagman, and that it was, and long had been, the uniform practice of the, company, known to and relied on by those who traveled the road, to .give warning when a train was sufficiently near to make the crossing dangerous, by having a flagman on the middle of the .track, holding up a white flag if the train was. to stop, and a red flag if it was to pass, without stopping.

Four witnesses for the plaintiff, who saw the whole trans-, action, and who knew Miller, the flagman, swore that he was not there, and that no flag was tnere. Of the defendant’s witnesses, Hunter, and the engineer both swore that there was no flagman. The fireman testified that there was one, and that he saw him waving his flag, but he was. impeached by his own oath before the coroner’s jury, when he swore positively that he saw no flag.

The bell was not rung, nor the whistle sounded, as the; train approached the crossing. It is true that the engineer and fireman, who were the immediate actors in causing the ■ death of Ernst, claimed that they gave the signals ; but the trackman did not confirm their statement, and the conductor frankly admitted that he was in the baggage car, where ■ he could have heard the bell if it had been rung'; that he was in the habit of noticing signals; that he could • not say the bell was rung, .and that the first he heard of the ■ whistle was when it was blown to apply the brakes at the point of collision. The defendant’s witness, Hunter, who. was standing within thirty-five feet of the crossing, unoccupied, and looking up the track, admits that he discovered the approach of the engine when it was within about a hundred and sixty feet of the crossing, and that he heard no signal, either by bell or whistle. The engineer himself admits, when sworn at the inquest over the body of Ernst, that the bell might not have been ringing when they came to the crossing.

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Dearstyne, the ferryman, standing on the boat at the landing, on the lookout for signals, swears that they neither rung the bell nor sounded the whistle until after the collision, when they began to do both immediately; that he had observed the omission in some previous instances, being on the look-out for passengers by stopping trains; that he heard their approach when they got within three hundred feet of the crossing, where he could not see them by reason of intervening buildings ; that his attention was drawn to it at the time, by hearing the cars before he saw them, and that the bell was not ringing when the train came in sight.

Brown, who was drawing gravel at the ice house, thirty-six rods above the crossing, testified, that they neither blew the whistle nor rang the bell, as they approached the crossing ; that his attention was drawn to the fact particularly at the time ; that he had occasion to drive across the track just at the corner of the ice house, another gravel team having crossed the track just before him ; that just as his horses were across the track and his wagon on it, this train suddenly appeared within less than a hundred feet of him; that until then he neither saw it nor heard its approach; that the train passed on, while he and the other teamster were speaking of the omission of the signal; and that within half an hour after he went to the crossing to water his horse, and there heard of the collision by which Ernst was killed.

Ten Eyck, who was at the store, and within some thirty or forty feet of the crossing, unoccupied and looking Up the track, testified that the bell was not rung nor the whistle sounded until after the collision, and that they then .began to do both; that he noticed the fact at the time, and that when he discovered the oars, they were within about ninety feet of the crossing, and he saw Ernst driving up to the track, and Hunter making motions to him, immediately before the collision.

Taylor and Traver both testify, that they heard no signal until after the collision; and that immediately after it the whistle was sounded and the bell was rung.

It was a very light train, only two cars being attached to

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the locomotive, one a baggage and the other a passenger car. • Two witnesses gave estimates widely different from each other, as to the distance a train might be heard by one listening for the sound. One thought it might be heard one or two miles, and the other thought it would not be audible when the whistle would be at a distance of seven or. eight rods.

The fact is undisputed, that the approach of this particular train was so noiseless, from the rapidity of its motion against the wind, the elevation of the intervening upland, the obstruction of trees and buildings, or the prevalence of other sounds, in a busy and populous neighborhood, that even the ferryman who was upon the look-out, did not detect it until it was within three hundred feet of the crossing; and Taylor, Traver, Ten. Eyck and Yandenburgh, all in the immediate vicinity,could not ■ and did not, hear it at all, until they saw it rushing out from behind the station house, immediately before the collision. Brown testifies that its approach was so imperceptible, that it was not noticed by him or his horses when he drove them across the track, though it was then" within less than a hundred feet of him. It was also proved that there were four railroads in the immediate vicinity, so that the noise of cars in the absence of signals, did not indicate their presence on that road.

The cars were moving with great velocity, and Dearstyne, the ferryman, who waited for the trains, and knew the times at which they were due, observed at the time that they were not passing at the regular hour. The proof was decisive that the speed of the cars at the crossing was greater than usual, and that they were going from thirty-five to forty miles an hour. Of the inculpated employees of thé defendant, the engineer claimed that they had been going only at the rate of about twenty-five miles an hour, and the firemen, that they were going only at the rate of ten or fifteen miles an hour ; but both admitted that on reversing the engine and applying f|ie brakes, they were unable to stop the engine until they reached the cattle guard, which was proved to be some nine hundred feet below the crossing, though they

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represented it as less than half that distance. It was proved by Mr. Squires, an experienced railroad conductor (and the fact was undisputed), that if they had been going only at that rate, with the light train they had, the reversing of the engine and application of the brakes would have stopped the cars in fifty feet, being one eighteenth part of the distance they ran after the collision.

The fact- that Ernst, when he turned his horses round from Broadway into Bensselaer, faced and looked north in the direction of the track as far as it was within the range of vision, was proved and undisputed. The range at that point was some twenty rods north of the crossing. He was one hundred and twelve and a half feet from the crossing when he started, and assuming the testimony of defendant’s witnesses to be true, he was advancing at the rate of about six feet per second, and nineteen seconds would bring him to the crossing. If the speed of the engine was thirty-five miles an hour, it was advancing at the rate of about three rods a second, or three rods and a half a second, if its speed was forty miles an hour. Assuming that it was coming only at the rate of thirty-five miles an hour, the engine, when he started nineteen seconds before the collision, was fifty-seven rods north of the crossing, and twenty-one rods north of the ice house on the sharp curve beyond the uplands, and far beyond the range of vision.

The witnesses could not testify whether he did or did not afterwards turn his head again to the north, in the few seconds that intervened. There was no point where, even if he had been standing erect, he could have seen the track beyond the ice house, which was within five hundred and ninety-four feet of the crossing. But he was on a lumber sleigh without the box, and as usual in such cases, he was sitting on the bottom of the sleigh. No proof was given as to the extent to which this reduced the range of vision. It was proved that in riding west it was not necessary to turn the head to see the track above the crossing, within the probable limits of his view in that position. There was no evidence that he did not look to the north repeatedly on the

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way down, unless it be inferrible from the fact that there was no sound or signal to call for a repetition of the precaution, and the further fact that they were beckoning to him in front to come on to the boat, and that he was approaching a steep descent, which required his attention to his horses. Whether he looked north again or not, the evidence clearly shows that he could not have seen the engine in time to avoid the collision ; for it is proved by the defendant’s witnesses, that neither of the three men at the lookout in front of the engine, saw either him or his team, until the very instant before the collision.

He had a handkerchief tied around his neck, as usual in very cold weather.

Hunter was called by the defendant, to prove that as he was standing some thirty-five feet from the crossing, and Ernst was passing him on a brisk trot, called to him to hold on. Hunter admits that he was himself excited and frightened, the cars being, then close to the crossing, and that Ernst did not appear to hear him.

This evidence was met by proof that Taylor and Dearstyne, who were facing Hunter, which Ernst was not, did not hear him; that Ten Eyck, who was in front of the-same store, and within a few feet of Hunter, did not hear him, though he saw him motioning with his hand, and that at the moment of Hunter’s warning, Ernst was just driving on the track, and the engine rushing within sixty feet of him.

Tator, a trackman of the defendant, who claimed to have been lounging at ten o’clock in the morning in the passenger room, was also called to prove that while Hunter was endeavoring to attract Ernst’s attention on one side, he was hallooing from the other, and the flagman warning him back from the crossing. He admits that Ernst was then within fifteen feet of the track, but it was proved by the witnesses that his statement as to the main fact was utterly untrue.

The proof was clear that motions were made by Simmons, Hunter and Bouse ; that those who saw the motions of Simmons, who alone was in front of Ernst, understood them as beckoning him on to the ferry boat, which was waiting;

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that those who heard the halloo of Hunter, and saw his motions, and those of Bouse, which Ernst probably did not, were in doubt until the engine appeared, whether they were beckoning him to go forward or to go back.

The proof was equally clear, that the warnings, if heard and seen by Ernst, were too late ; that the horses were in full motion, and within fifteen feet of the track; that they were frightened, and plunged southward on the ties, and that Ernst ineffectually tried to pull them back.

It was proved that Gregory, who acted as engineer, was a boy who described himself as some eighteen years of age, when he ran over Ernst, and who had shortly before been taken from work in a machine shop, to act as engineer on the defendant’s road. It appeared that he and Porter, the fireman, were the same emyloyees who had run over and killed another traveler some two months before in the city of Troy.

Their testimony, and that of the trackman, was discredited by the other evidence in the ease given by disinterested witnesses.

The trackman, among other things, swore that the flagman was at the crossing, a fact which is disproved on all hands ; that Ernst was within thirty feet of the track, and driving ten miles an hour when the train was at the ice house, five hundred and ninety-four feet above; that driving at that rate, he stopped them directly on the track, and they remained there standing still on the track for a minute, waiting until the engine came down and struck them.

The engineer swore that it was a local train at the usual time, a fact as to which he was flatly contradicted; that he blew the whistle eighty rods from the crossing, and that the bell was rung continually from that point down to Bensselaer street; a fact on which he is confirmed neither by the conductor nor the trackman, and on which he is contradicted by Hunter and Vandenburgh, two of the witnesses for the defendant, as well as by Taylor, Traver, Dears fcyne and Brown. He swore before the coroner’s jury that he saw the flagman motion to Ernst to stop, and on the last trial

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he admitted the statement was false. He swore on the inquest that after the warning by the flagman, Ernst urged his horses faster with rein or whip; and on the last trial admitted the fact to be untrue, and swore that he did not see the team of Ernst at all until after the collision.

The fireman testified, among other things, that the whistle was blown more than eighty rods above the crossing; that the bell was ringing all the way down, and that when the engine was at the ice house, he saw Bouse motioning with a flag. He was contradicted by his own oath before the coroner’s jury, where he swore that he saw no flag. He admitted on the last trial that he did not see the testator’s team until after the collision, though he swore on the inquest that he did.

Seven witnesses were sworn on behalf of the plaintiff on the last trial, who were not in attendance on the previous trial, and they testified to material facts tending to discredit and rebut the facts before proved by the defendant, and relied on to inculpate the testator as guilty of negligence.

The defendant neither produced, nor gave any excuse for the non-production of Simmons, Butler and Waltemyre, their three principal witnesses on the former trial, and on whose testimony mainly, as appears clearly from the prevailing opinion, the new trial was ordered when the cause was before this court on a former occasion. Ostrander, who was erroneously represented in the report of the case in 24 How., 99 , as swearing on the trial then under review in this court, to material facts inculpating the deceased, was not sworn at all, either on that or on the last trial. The entire statement there prefixed to the opinion, was evidently made substantially from the report of the review in the supreme court of a previous trial, in which the plaintiff was non-suited. ( 32 Barb. 159 ; 19 How. 205 .) The review in this court was of! the second trial, in which the plaintiff recovered.

Proof was offered in behalf of the plaintiff of the dying declaration of the testator, that he had no warning of the approach of the train, but on the objection of the defendant it was rejected.

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E. A. Pabmenteb, for appellant.

J. H. Reynolds, for respondent.

When this case was here on a former occasion, a new trial was granted on the ground that a non-suit had been refused, upon a state of facts, of the truth of which there is now no pretense. That decision is unreported in the regular series; but one of the opinions delivered in this court is contained in another law publication ( 24 How. Pr. Rep. 97 ). In that report, through some misapprehension or oversight, the head note, as well as the preliminary statements of facts, are erroneous. The body of the opinion, however, discloses a very striking difference in the evidence as then and as now presented, on the vital question, whether the husband of the plaintiff was chargeable with negligence, and a guilty participation with the defendant in the wrong which resulted in his death. We find the difference still more marked, on examining the printed cases upon which the decision of this court was founded.

. It seems that the plaintiff was surprised on the trial by proof which she probably had no reason to expect, but which it was not thought proper to repeat on the last trial, when she was prepared with evidence to meet it. The prevailing opinion assumes—and we are at liberty, and perhaps bound to suppose, that the testimony of Simmons, Butler and Waltemyre, whom the defendant did not call on the last trial, justified the assumption—that Ernst was intoxicated on the occasion of the collision ; that he drove so carelessly by the way that he was partially deprived of the use of his ordinary faculties ; that he knew the stated times for the passage of the trains; that this was in fact a regular train, on its stated and customary time ; that it was notoriously due at that hour; that Dearstyne’s hotel, at which Ernst stopped, was one hundred and fifty feet east of the track; that he started from there at a rapid rate of speed; that other persons heard the train coming at quite a distance ; that four of them, after he started from the tavern, respectively called to him in a loud voice to stop, several times each; that quite

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a number of persons saw the train approaching, and that he had an open view of it nearly ah the way from the hotel to , the crossing, for a distance of a hundred rods from the highway on which he was riding ( 24 How. 102 , 108,110).

In the light of the evidence given on. the last trial, it is not difficult to infer why testimony like this was not reproduced when the plaintiff was prepared to meet it. Simmons, one of of these witnesses, swore to a box on the testator’s sleigh, and a seat on the box; represented in substance that the intoxicated man who had been running his horses and drinking at every tavern, had his head as well as face bundled up in a big shawl; that he himseif heard the cars coming, and standing near the track, and face to face with Ernst, when the latter was half way down from the tavern, told him to stop for God’s sake, or he would be killed. It appears that Butler on that occasion swore with equal zeal. His version of the matter in substance was, that he stood on the north-west corner of Broadway and Bensselaer streets ; that he hallooed from there to Ernst as he was passing, to hold on; that the testator appeared to hear him, but turned his head away, and in defiance of the warning, drove on to the crossing. Waltemyre, on that trial, went further still, and in effect represented Ernst as driving his horses on the track directly in front of the engine, though warned of its approach by the whistle, the bell and the flagman.

The testimony of these three men then given, and now withheld, explains the former decision, that upon such a state of facts the plaintiff should have been non-suited. It also explains why that decision was by a divided court. Such testimony, though not met by a point blank contradiction, was too impropable with the other facts proved, either to obtain credence with the jury, or to commend itself to the full confidence of practiced jurists. It happened that the case upon the testimony as then given, was heard in this court and the court below, by ten of the judges, only five of whom differed in their conclusions on the question of fact from the jury. It is scarcely to be supposed that they would have hesitated to approve the verdict if it had been upon.

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the proof presented by the respective parties on the subsequent trial.

It now appears that the prominent facts then relied on to inculpate the testator, were fictitious. Instead of being a drunkard, stupified and crazed with liquor, he is proved to have been an orderly, sober and respectable citizen. The pretence that he drank any where that morning is abandoned, and his family physician testifies that he never knew him to be intoxicated. Instead of being deprived of the use of his faculties, he is shown to have been a man in the prime of life, of regular habits, with clear vision and in perfect health. Instead of running his horses by the way, and starting from the tavern with reckless speed, he is shown to have been an experienced and practiced driver; and it is proved that on this occasion he started from the hotel on a walk, and con1-tinued to drive with moderation, prudence and judgment. The claim that he knew the stated times of the trains, is also abandoned. The fact that this was a regular train, on its customary time, is alleged by none even of the defendant’s witnesses except Gregory, the engineer, and he is flatly contradicted by Bearstyne, an intelligent and disinterested witness, who knew the time of the trains, waited for them with his ferry boat, and observed the fact at the time, that this was a train not then due. The defendant knowing the fact to be in issue, neither produced its table, nor confirmed Gregory’s statement by the testimony of any of its other engineers. The absence of the flagman from his post, is strong presumptive evidence that no train was due at that hour. Under such circumstances, no court has a right to assume, as matter of law, that the statement of the inculpated and impeached engineer is true, and that the contradictory testimony of a reliable and disinterested witness is false.

It now appears that instead of the testator riding a hundred and fifty feet in full view of the engine, the whole distance from the hotel to the track is less than a hundred and thirteen feet, and that he did not see the engine at all until it emerged from behind the station house, when the horses were in the very act of going upon the crossing. It also

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appears, that instead of his having from the hotel down, except opposite the station house, an open view of the northern track for a hundred rods, there was not one place in the whole distance, where, even if he had been standing up and expecting the train, he could have seen it as far north as the ice house, which was within five hundred and ninety-four feet of the crossing. The track instead of being straight, was sharply curved. The view, instead of being open, was obstructed by intervening woods and upland. The natural point of observation, when there was no signal of an approaching train, would be at the corner of Rensselaer street, as he turned his horses to the north and drove into it Rom Broadway. The proof is explioit, that from that point the range of vision is but about twenty rods, and it is equally decisive that when he was at that point the engine was behind the hill and woodland, at least fifty-seven rods above the crossing. Ernst, as he drove down, was sitting on the bottom of his sleigh, which had no box. This of course naturally narrowed his range of vision, and made even an intermediate fence an additional obstruction to the view.

There was no pretense now that any one east of the store which adjoins the track, either saw or heard the train at all, until it reached the crossing. Ten Eyck and Hunter were at the store, within two or three rods of the rails. Both of them were looking north, and both unoccupied, yet neither of them saw or heard the engine until it was within less than two hundred feet of them ; the horses of Ernst being then close to the track, and in full motion. It was not seen at all by the witnesses Taylor, Traver, Dearstyne and Yandenburgh, until just before it reached the crossing, and none of them heard it until then, except the ferryman, who was more familiar with the sound, and who detected it first while looking in that direction from below on the river, when the cars were within thrée hundred feet. The claim that four men ■ were hallooing to Ernst to stop, when he was not yet half way down, is also now abandoned. But two men hallooed at all; one from the store, and one from the station house, while the train was passing between them. If Ernst heard what

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either of them said, the fact is undisputed that no one else did. The warning was well meant, but it came too late. It was simultaneous with the res gesta, with the rush of the engine, the plunge of the horses, and the ineffectual struggle of the testator to rein them back.

The proof is clear and decisive that the bell was not rung nor the whistle blown, until after the collision. Only two of the defendant’s witnesses claim that they were, and they were the two employees whose neglect of that duty cost Ernst his life. One of them was a mere boy. Both were impeached on material points, by their own oaths before the coroner’s jury. They had officiated some two months before as engineer and fireman when Wilds was killed. They were specifically contradicted as to the whistle and the bell, by two of the defendant’s and five of the plaintiff’s witnesses, and they were confirmed by nobody. On the last trial it also appeared that this was a flag station; that it was the known and uniform practice of the company, whenever there was a train advancing within eighty rods of the crossing on either side, to give notice to the public of its approach by exhibiting at that point a white flag if the engine was to stop, and a red flag if it was to pass without stopping. There was neither flag nor flagman at the crossing; and thus the practice, which was adopted for the security of the traveler, was converted on this occasion into a snare for his destruction. On this state of facts, there was nothing to justify the imputation of culpable negligence to the testator; and most manifestly there was nothing to warrant a court in adjudging his guilt as matter of law, without the intervention of a jury.

In reviewing the propriety of the non-suit, we are legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness be controverted by the defendant’s witnesses (Colgrave agt. The New Haven and Harlem Railroad Co. 20 N. Y. R. 110). It is the appropriate province of the jury to deduce inferences of fact, and to weigh doubtful or conflicting evidence.

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The testator was lawfully upon the public highway. The right he had to use it was as perfect as that of the defendant to cross it. In the exercise of his legal privilege, he did not expose others to injury, and was charged with no duty of extraordinary vigilance. The defendants exercised theirs with agencies iminently perilous to human life,, and they were under a correlative obligation to use them with the highest degree of care. As the highway was never dangerous, except when they made it so oy driving their engines across it, and as they never crossed it without some degree of jeopardy to the wayfarer, the law provided for the security and protection of the citizen, by requiring the defendants to give special and public warning whenever their engines approached the crossing.

The rights of the people of Eensselaer in their own highways, are not subordinate to those of the railroad company. H the traveler is warned of the approach of an engine by the customary signals, or if by other means he is made aware of its proximity, it is his duty to avoid exposing himself to injury. If he advances on the open highway, with no cars in view, and no indication of their approach, either by signal or otherwise, he is at liberty to pursue his way without incurring the imputation of breach of duty to a wrong-doer.

The only condition of the right to redress for a wrong of this description is, that the party aggrieved be free from culpable negligence; and he is not chargeable with such negligence, unless he fails to exercise ordinary care and vigilance to avoid the injury of which he complains. There has been some diversity of judicial opinion as to what ordinary care and vigilance demand of a party upon a given state of facts; but that this is the uniform standard by which to test the right of the plaintiff has been too often adjudged to be open to further discussion.

The rule is simple, practical and easy of application. “ The question is,” as this court said, when this case was before it on a former occasion, “ what would a majority of men of common intelligence have done under like circum

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stances ?” ( 24 How. 108 .) “ Ordinary care, skill and diligence, is such a degree of care as men of ordinary prudence, under similar circumstances usually employ ” (Brown agt. Lynn, 31 Penn. 512 ).

The degree of care which men of common prudence would be likely to observe in a given case, must be determined with reference to all the attendant circumstances. An injury by an engine in motion, would necessarily be of a grave and serious character; but at a distance of eighty rods from the crossing, it would be as harmless to the wayfarer as the rail over which he drives. It is not unusual in argument to confound the seriousness of such an injury, when it oeeuis, with the probability of its occurrence, and to assume that the same degree of vigilance is demanded when the engine is not within the range of sound or vision, as when it is seen in close proximity, or public warning is given of its approach.

The measure of precaution which ordinary prudence suggests, is proportioned to the probability of danger. When a train is seen or known to be close at hand, a discreet man would stop until the danger is past; but to stand waiting in front of a public crossing, with no reason to believe that there is an engine within a quarter of a mile, would indicate over cautious timidity, and would seem to most men puerile.

On such subjects, as on all others, men exércise their reason, and do not yield to childish apprehensions of distant engines or unloaded guns. When they draw near a railway crossing, and the flagman gives no warning, when no sound or sign indicates the presence or approach of a train, they assume that they may safely cross and proceed quietly on their way. If, in such a case, an engine with muffled bell, rushes upon them too suddenly for escape, the wrong is due to those who falsely assured their safety by withholding the usual warning.

The citizen who on a public highway, as he approaches a railway track, and can neither see nor hear any indication of a moving train, is not chargeable in law with negligence for assuming that there is no car sufficiently near to make the crossing dangerous. (Newson agt. The N. Y. Central

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R. R. Co. 29 N. Y. R. 390 ; Johnson agt. The Hudson River R. R. Co. 20 N. Y. R. 74; Hegan agt. The Eighth Avenue R. R. Co. 15 N. Y. R. 383; Harper agt. Curtis, 1 E. D. Smith, 78; Gordon agt. Grand St. R. R. Co. 40 Barb 550 ; Pennsylvania R. R. Co. agt. Ogier, 35 Penn. 60 , 72.) In the case first cited, Judge Johnson, who delivered the opinion of the court, stated the rule thus : “ The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both.” In case of Gordon agt. Grand St. R. R. Co., Judge Bbown traced the rule to the reason on which it is founded. “ Negligence,” he said, “ cannot be predicated of such an act. Care in avoiding danger implies that there is, or would be, with all prudent persons, something to create a sense of danger ; for if the circumstances are not such as would put a prudent and cautious person upon his guard, the omission to exercise more than ordinary attention, is not the negligence which contributes to an accident.” In the case last cited, the court in considering the effect of the omission to give the customary signals, on the question of due care by the plaintiff, used language equally explicit. “ A defendant cannot impute a want of vigilance to one injured by his act as negligence, if that very want of vigilance were the consequence of an omission of duty on the part of the defendant.”

In the present case, the defendants not only misled the testator by not exhibiting the flag at the crossing, in accordance with the uniform custom when an engine was near, but also by approaching the highway illegally, neither sounding the whistle or ringing the bell as they advanced. This was an act in open defiance of the public statute enacted for the protection of the traveler. It was a flagrant breach of duty to the passengers whose safety it jeopardized, to that of stockholders, whose property it imperiled, and to the testator life whose it exposed. Its direct tendency was to put him off his guard, to disarm his vigilance, and to produce a false sense of security.

To transfer the blame to him, would be to screen the

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wrong-doer at the expense of the victim. It is not the policy of the law to' favor those who deliberately violate its mandates, nor is it the duty of the courts to invent excuses for wrong-doers, or to palliate the guilt of reckless homicide. Our statutes for the protection of life are to be obeyed, and when they are broken and defied, responsibilty is not to be evaded by imputing blame without proof to him who suffers death, for the sake of shielding those who inflict it.

In this case the parties inculpated have been sworn. Ernst of course could not confront them; but we are to judge him in the light of the evidence, by the ordinary rules which govern human action. He was a man of business, in the vigor of middle life, and in the full possession of his faculties. He was a man of family and character, of experience and of judgment. He had no apparent motive or inducement to make a wanton sacrifice of his life. He had the ordinary instincts of humanity. If, on this occasion he did anything which he ought not to have done, or left undone anything which he ought to have done, it was in the brief interval of nineteen seconds. It is said he should have looked north before he drove down the street, which the defendant by violating the statute, could convert into a cul de sac to the traveler. That was precisely what he did. In turning his horses around to drive from Broadway into Bensselaer street, he necessarily faced to the north and west, thus commanding a view of the track directly in front, for a distance of some twenty rods. He did not see the cars for the simple reason that they were not there. They were still behind the hill, and nearly sixty rods north-east of the crossing.

It is claimed that he started at a high rate of speed, but the proof is that he started on a walk; that he went down Bensselaer street on a slow trot, and that he did not quicken his gate until as he approached the track, he was beckoned to hasten on to the ferry boat which was waiting for him at the landing. It is also said that he should have been on the lookout for the flag uniformly displayed at the crossing when a train was near. He did look, and he saw that there

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was no flag, which was a direct assurance by the defendant that there was no engine advancing on either side within a quarter of a mile. He was forewarned of no approaching danger, and it was not to be expected, under such circumstances, that he should be forearmed with extraordinary vigilance. The plaintiff is reproached for the fact that the husband had a shawl around his neck. It is the ordinary precautions on a cold winter morning, of every traveler who has one to wear, and it was no more a breach of duty to this railroad company, than it would have been if he had worn a fur cap or a second overcoat.

It is claimed that he should have listened for the whistle and the bell. He did, and the fact that neither was sounded, was a further assuranc¿ by the defendant that there was no engine in motion within eighty rods of the crossing.

It is also claimed that he should have stood up in his sleigh. He owed no such duty to the defendant. It would be scarcely more absurd to hold that a footman should climb a tree or mount a fence before crossing, to assure himself that the company was not breaking the law by sending an engine without signals to run over travelers on a public highway.

It is insisted that he ought to have looked before him and on both sides, as he advanced. He did; for he is proved to be a man of clear vision, and he could not avoid so looking, except by closing his eyes. He was sitting on the bottom of his sleigh, and, of course, his range of vision was essentially limited; but to say that he did not or could not see whatever was within that range, would be in direct hostility to the proof. It would be as idle as it would be to assume that one who is driving down the centre of State street, cannot see that there are buildings on both sides of the way,’ or that a Hudson river pilot cannot see both shores of the river in front of him without turning his- head back and forth in the wheel house.

It is said that he should have observed the man who was beckoning . to him from the ferry side of the track. He doubtless did, unless the horses in front of him partially

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obstructed bis view; and it is reasonable to assume that he understood it as others did, as urging him to hurry on to the boat.

It is claimed that he was bound by an inflexible rule of law, to see, to hear and to understand the two persons who hallooed, one from the station house and the other from the store, as he was passing between them. There is no such rule of artificial presumption, and we see no reason for its adoption, if we were at liberty to change the law of evidence. It would be an arbitrary legal.intendment on a pure question of fact, without reason or truth to commend it. We have no authority to invent rules for the purpose of shielding wrong doers. It was a question of fact for the jury, whether the testator saw and heard these men. His advanced position and his winter attire, did not favor a lateral view. It is obvious that he did not hear what they said, for it was heard Dy no one else; and they were speaking simultaneously, from opposite Sides of the street. Neither of them called him by name, and if his attention was directed, as it naturally would be, to the movement of his horses and the steep descent to the ferry boat directly in front of them, he probably assumed that the men were speaking to each other across the street, an incident of ordinary occurrence in a country village. It is quite probable too, that he heard simultaneously the rush of the train, as all this occurred within a few. seconds of the fatal collision. His horses were under full headway, and every one who is accustomed to drive knows the difficulty of controlling even a single horse when brought suddenly in presence of an engine rushing upon him at the rate of forty miles an hour. It is proved and understood, that his horses were frightened; that they sheered southwardly on the track, and that he struggled ineffectually to rein them back. The evidence establishes an adequate cause of death in the defendant’s wrong. It affords no warrant of imputing to the testator the guilt of complicity in that wrong.

The dernier claim of the respondent, all other defenses failing, is that the testator was guilty of culpable negligence

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in not listening for and hearing the rumble on the rails, of a train -which he had no reason to expect, and which gave no signal of its approach. That he did not hear it in time to escape the collision is so obvious, that the defendants do not claim that he did; but they insist that he ought to have heard it, and that his failure to do so was a breach of duty to the company.

This theory is founded upon the incidental opinions expressed by two of the witnesses, not as to the distance this train might have been heard under the actual circumstances, and with the intervening obstructions, but on the general question, how far it might be possible to hear a train approaching when omitting the customary signals, in violation of law. Neither of them.professed to speak from actual knowledge or observation, and their estimates were widely different. One thought it .might be detected at a distance of one or two miles, and the other, that it would not be audible when" the whistle would be at the distance of seven or eight rods. It is obvious that speculative opinions on such a question scarcely rise to the grade of evidence. The distance at which the approach of a train can be heard without the signals, must depend on a great variety of circumstances, such as the structure and condition of the particular rails, the firmness of the ties, the direct or winding course of the track, the condition of the atmosphere, the direction and course of the wind, the shutting off of steam, the proximity of distance to the line of the rails, the prevalence of other sounds, the acuteness of the observer’s hearing, the depression or elevation of the track, the vicinity of valleys, woods and hills, the hour of the .day or night, the comparative silence of the country, or the hum and bustle of city life, and the vicinity of steamboats, factories and public works. Here speculation on the general question, without reference to these and other like conditions, is plainly idle and illusory. It is proved, as matter of fact, that though such a number of witnesses were present on this occasion, each under more favorable circumstances for hearing it than the testator, the practiced ear of the ferryman, who listened daily for the

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approach of the trains, did not catch the sound until the engine was within three hundred feet. Taylor, Traver, Ten Eyck, Hunter and Yandenburgh, did hot hear it at all until just as it rushed down over the crossing; the horses of Ernst did not hear it until they were close upon the track; and at the ice house, Brown did not hear it until his wagon was upon the rails, and the engine within less than a hundred feet of him.

It was because the approach of a railway train is stealthy and imperceptible, and because the sound is not readily distinguishable from others associated with no danger, that to secure the traveler at once against needless apprehension and needless exposure, a statutory mandate was given to every such company in this state to approach no public highway crossing with an engine, without public and distinctive signals of danger for a distance of eighty rods before passing such crossing.

The duty is plain and absolute. The company which violates it does so at its peril. If its agents are faithless, it should dismiss them. If its officers choose to disobey a law for the protection of human life, or to tolerate its violation by their subordinate agents, the remedy is in the hands of the stockholders, by selecting those who will respect our public statutes. When the illegal act results in the death of a citizen, the company must respond, unless he has been guilty of a breach of duty, which contributed to his destruction. He is not guilty of such breach of duty when he assumes, in the absence of any indication to the contrary, that the company obeys the law, and that no engine is advancing to the crossing within a distance of eighty rods, without public signals of its approach. If he is deceived by the unlawful omission of the signals, the wrong is not his but theirs. The illegal act of the company does not, however, justify him in encountering the risk of crossing, if he sees or hears the approach of the engine, or is otherwise notified of its presence in season to avoid the peril. In that case he is guilty of culpable negligence, and the company is relieved from the responsibility of causing his death. But it is no

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defense of the wrong-doer, that though' the -victim did not see or hear the engine, and was not notified of its approach in time to avoid the collision, he might have seen or heard it if he had exercised a higher degree of vigilance, and had foreseen a violation of the law, instead of relying upon its observance. Such a theory has received countenance in a few instances, in the opinion of individual judges. It has support in the dictum of the accomplished and able jurist who delivered the prevailing opinion in this cause on a former occasion. This question, however, was not then passed upon by the court, nor was it involved in the decision. On the proof as then presented, the question was whether one was culpably negligent who rode nearly a hundred and fifty feet in full view of the approaching train; who knew it to be due, and who persisted in driving against it though notified by four persons of its presence in season to avoid the danger.

Certainly the views of this court on the theory suggested, have been announced too often in adjudged cases, involving the precise question, to be open to any misconstuction, and to some of these cases we shall have occasion to refer. "We think the railroad companies themselves have given a correct exposition of their own obligations and the rights of the public, in the ordinary warning inscribed over highway crossings : “ Look out for the cars when the bell rings.” In our view, the rule of law is essentially misapprehended by those who would make the inscription read: “ Look out for the cars when the bell does not ring.” The usual argument in favor of such a theory is, that trains are constantly passing and repassing, at every railway crossing. Certainly we are not admonished of this by the constant ringing of the bell, and every man of ordinary observation knows the fact to be otherwise. If ten regular trains a day are run over a given highway, they render the crossing unsafe when they pass, and only then. It is free from danger, except, at most, for twenty minutes in the aggregate of each twenty-four hours, and the traveler is safe against exposure at those momentary intervals, if the company obeys the

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law and rings the bell. If it will not do that, it has no cause of complaint against the wayfarer whom it voluntarily misleads. In su'ch case the language of Chief Justice Beabdsley is appropriate : “A man is under no obligation to be cautious and circumspect towards a wrong-doer ” (Tonawanda R. R. Co. agt. Munger, 5 Denio, 266 ).

It is not true that a traveler on a public thoroughfare, is guilty of culpable negligence, as matter of law, if he does not stop to listen, or look up and down the track before he goes over a crossing. The proposition is in direct conflict with repeated adjudications in this and in other courts. "Whether such an omission is culpable, depends upon the facts and circumstances of each particular case.

There is a class of cases in which the proof of the plaintiff’s negligence is clear and undisputed, and whenever this appears, a non-suit is matter of legal right. A party who sees or hears an approaching engine, and chooses to take the risk of crossing before it, rather than await its passage, forfeits all claim to’ redress; and under such circumstances, it is not only the right but the duty of the court to apply the familiar rule—voienti non Jit injuria. But there is another class of cases in which it is equally well settled that we have no authority to impute negligence to the deceased, for an omission which may fairly be attributable to the very wrong resulting in Ms death.

In the case of Brown agt. The N. Y. Central R. R. Go., decided at the last June term, we held that no culpable negligence was established, though it was proved by the driver of the coach demolished by the coMsion, that he did not look in the direction from which the cars were approaching until his horses were upon the track. The usual signal of danger not being" given as they advanced to the crossing, and this, though it appeared in the evidence that if he had looked before, he would have seen them in season to avoid the collision (32 N. Y. R. 597).

The doctrine of that case was unanimously reaffirmed upon a like state of facts, at the last December term of this court (Stilwell agt. The N. Y. Central R. R. Co).

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In the earlier case of Megrath agt. The Hudson River R. R. Co., the same rale was clearly announced. “ It is not always negligence,” said the court, “to cross a railroad track at times when a train is not due, or cannot reasonably be expected to pass; nor to cross a railroad track without looking for a train, when no signal of its approach is given by the ringing of a bell or otherwise ( 32 Barb. 147 ). So, also, in the case of Warren agt. The Fitchburgh R. R. Co., it was held by the Supreme court of Massachusetts, a state in which no undue rigor of intendment is supposed to prevail against corporations; that crossing a railroad track without looking to see if a train is coming, is not conclusive proof of want of care ” ( 8 Allen, 227 ).

In the case of Fero agt. Buffalo and State Line R. R. Co., it was claimed that the plaintiff could not recover for the injury, as it was apparent that he could readily have averted it by the exercise of greater care ; but this court held, that “ if he was guilty of no culpable negligence, the mere fact that he might have been more vigilant, c'will not excuse the wrongful act of the defendants, nor deprive the plaintiff of redress for the injury he has suffered ” (22 N. Y. R. 213).

The question whether the plaintiff was free from negligence, in ordinary eases of this description, is one of fact, to be determined by the jury under appropriate instructions, and subject to the revisory power of the courts. Occasional instances occur, where the proof of misconduct is so clear and decisive, that the judges are bound to pass on the question of negligence as matter of law. It is a mistake, however, to suppose that the decisions made from time to time, in these two classes of cases, conflict with each other, or involve any departure from the settled rules of law, where the question arises on a state of facts on which fair minded men may rationally arrive at opposite conclusions, the issue is properly submitted to the jury. Where, as sometimes happens, in exceptionable cases, the injury is traceable to clear and unquestionable misconduct on the part of the plaintiff, it is the plain duty of the court to apply the law to the facts without the intervention of the jury. In the' present case,

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there is a renewal of the attempt so often made, to extend the exceptional rule to all classes of cases. It is our province to uphold the law, and not to alter it. We believe it to be wise and- just, but if we deemed it otherwise, we have no authority to subvert it. We should be restrained from making the innovation proposed, not only by our own repeated adjudications, but by that time-honored and elementary maxim on which our system of jurisprudence is founded: Ad questionem facti non respondent judices—ad questionem legis non respondent jur atores.

The views of this court as to the right of the party claiming redress, to have the question, whether he was free from negligence, determined ordinarily by the jury, have been repeatedly expressed with great clearness and emphasis.

In the case of Ireland agt. The Oswego R. R. Co., Judge Johnson said: “ The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as a matter of law. On the contrary, it is almost always to be deduced as an inference of fact, from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their force and weight considered. In such cases, the inference cannot be made without the. intervention of a jury, although all the witnesses agree in their statement, or there be but one statement, which is consistent throughout. Presumptions of facts, from their very nature, are not strictly objects of legal science, like presumptions of law. That the care exercised by the plaintiff at the time of the injury, and the negligence of the defendant, were both questions for the jury to determine, cannot admit of any doubt ” (3 Kern. 533).

In the case of Keller agt. The N. Y. Central R. R. Co., Judge Mason delivered the opinion of the court, and after citing the foregoing exposition of the rule, he proceeded to say : “ What constitutes negligence in such cases, is determined by an inference of the mind from the facts and circumstances of the case, and as minds are differently consti

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fcutecl, the inference from the given state of facts and circumstances will not always be the same. I admit that the facts may be so clear and decided, that this inference of negligence is irresistible, and in every such case it is the duty of the court to decide; but when the facts, or the inferences to be drawn from them, are in any degree doubtful, the only proper rule is to submit the whole matter to the jury, under proper instructions ” ( 24 How. 177 ).

Similar views were expressed by Judge Denio, in the case of Hagan agt. The Eighth Avenue R. R. Co., and by Judge Selden, in that of Bernhardt agt. The Bensselaer and Saratoga R. R. Co. It was said by the latter, with the precision and perspeeuity which mark aE his judicial opinions, that “ although as a general rule, questions of negHgence belong exclusively to the jury, cases may no doubt arise in which the proof of negEgenoe would be so clear and irresistible, that the court would be justified in assuming, without submitting the question to the jury, that negHgence was estabhshecL At the same time it is obvious, considering the nature of the question, that such instances must be rare. If there is any conflict in the evidence going to estabhsh any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. H it is necessary to determine, as in most cases it is, what a man of ordinary' care and prudence would be likely to do under the circumstances proved.; this involving, as it generaEy must, more or less of conjecture, can only be settled by a jury” ( 23 How. 168 ).

The struggle of defendants to inaugurate a different rule, and to induce the courts to resort to artificial refinements for the protection of wrong-doers, is perhaps excusable in those who are impatient of legislative restraint.

There is an unfortunate and growing tendency to regard human life as of secondary importance in comparison with the objects of commercial and corporate enterprise. The aid of the courts is invoked to annul by indirection the force of general law. Suits and appeals multiply in the con

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stantly increasing ratio of reckless injuries, which nothing could tend more to encourage than this theory of immunity from civil damages, on the assumption, as. matter of law, that a party over whom an engine is driven, is culpable for not keeping out of the way, and that the question whether he was really guilty of negligence, is not one of fact for a jury.

If it were true, as sometimes intimated even from the bench, that false verdicts are occasionally rendered on questions like this, the remedy is to set them aside and not to usurp the prerogative of the jury. Even among the cases which have been held so plain as to justify a non-suit, there have been few in which the judges have not themselves disagreed, and the inquiry naturally occurs to the mind, whether we are less liable than jurors to err on questions of pure fact pertaining to the ordinary affairs of life. ■ Our law is framed upon the theory that on such questions the citizen can rely with more security on the concurrent judgment of twelve jurors, than on the majority vote of a divided bench. Unanimity is not required in our decision on questions of law. It is otherwise with jurors charged with the duty of determining issues of fact, and such issues should not be withheld from the usual arbiters, unless the evidence leads so clearly to one result that there is no room for honest difference between intelligent and upright men. A non-suit should always be granted where the proof is so clear as to warrant the assumption, in good faith, that if the questions were submitted to the jury; they would find that the culpable negligence of the "plaintiff contributed to the injury. But we have had occasion recently to hear non-suits of this kind justified on the novel ground that unless the fact be determined in one way by the judge, it will be sure to be determined in the other by the jury. The correctness of judicial opinions on mere questions of fact, may well be distrusted, when we find them confessedly opposed to the ■common sense of mankind.

The judgment should be reversed, and a new trial ordered.

All the judges concurring, judgment reversed, and new trial ordered.

Cases cited

Ernst v. Hudson River Rail Road 32 Barb. 159 N.Y. Sup. Ct. 1860-03-05 p. 63, p. 72