had on a heavy load, approached the crossing from the east sitting sideways on his load, with his feet to the south, at a slow trot; there was a single point on the street two hundred and thirty feet east from the crossing where a glimpse of a train approaching from the south could be had during the moment it was two hundred and sixty-two feet distant from the crossing. When S. reached that point of view the train which caused the accident was a long distance south from that point; no train could again be seen until he came to within twenty-one feet of the track. When S. reached this point the train was on a curve, the end of which toward the crossing was four hundred and thirty-five feet therefrom, and if moving at the rate of thirty miles an hour, as some of the witnesses estimated, it would have taken it ten seconds to reach the crossing. No bell was rung or whistle sounded, and two witnesses who were on sleds behind S. testified that they neither heard nor saw the train. S. appeared to have become alarmed at the first moment in which a sight of the train was possible, and the evidence justified a finding that he tried to stop but could not. He then jumped from his load, but was struck by the engine and killed. The track was depressed from eighteen to twenty inches below the surface of the street, and the descent commenced six or eight feet back from the rails; this slope was icy. Banks of snow and ice two or three feet high, beginning three or four feet from the rails, and extending easterly six or eight feet, bordered each side of the travelled track of the street, which was only wide enough for a single team. Held, that the evidence justified the submission of the question of contributory negligence to the jury.

Salter v. U. & B. R. R. R. Co. (75 N. Y. 273), distinguished.

The court charged in substance that defendant had a right to travel over its road at pleasure, and at such rate of speed as it saw fit, but that circumstances might make the exercise of such right an element of negligence; that great speed was not necessarily negligence, but in connection with other facts and circumstances might tend to establish it. Held, no error.

The court charged that if the course pursued by the deceased was one which persons of prudence and self-possession would adopt under the same circumstances, he was not negligent in so doing; that the standard by which his conduct was to be judged was that of an ordinary careful, prudent man. Held correct.

APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict.

This action was brought to recover damages for alleged negligence causing the death of Frederick E. Salter, plaintiff's intes

tate.

The case has been twice to this court before. (See Mem. of decision on first appeal, 59 N. Y. 631, and report of decision on second appeal, 75 id. 273.)

The accident occurred in the village of Carthage. The deceased was engaged in drawing logs to a saw-mill, having to cross defendant's track, which runs north and south through the village. The mill is on the west side of the track; to reach it Salter drove down Furnace street, which runs east and west; he was sitting sideways. on his load, his legs on the south side; the train approached from the south; the horses crossed the track uninjured; the train struck

the sleigh; Salter was seen to jump from the load on the south side, just before the train struck it; he was run over and killed. The further material facts are stated in the opinion.

Francis Kernan for appellant. Plaintiff should have been nonsuited, because the evidence did not authorize a finding that the deceased was free from contributory negligence. 58 N. Y. 248; Salter v. U. & B. R. R. R. Co., 75 id. 273. To entitle the plaintiff to recover it is essential, in addition to proving negligence by the defendant, that there should be satisfactory affirmative evidence from circumstances, or direct testimony, or both, that the deceased did not contribute to the injury by any negligence or want of due care on his part. Reynolds v. N. Y. C. R. R., 58 N. Y. 248, 250, 252; Wilde v. Hudson R. R. R. Co., 24 id. 430, 432; Warner v. N. Ý. C. R. R., 44 id. 466, 470, 471; Salter v. The U. & B. R. R. R. Co., 75 id. 273; Cordell v. N. Y. C. & H. R. R. R. Co., id. 330, 332, 3, 4. It was the duty of the deceased to approach the railroad with his team under such control as to be able to stop or to turn them aside. Salter v. The U. & B. R. R. R. Co., 75 N. Y. 273; Cordell v. N. Y. C. & H. R. R. R. Co., id. 330; Wilcox v. Rome, etc., R. R. Co., 29 id. 358, 366-7; Wilde v. Hudson R. R. R. Co., 47 id. 400; Mitchell v. N. Y. C. & H. R. R. R. Co., 59 id. 468, 471; Haight v. N. Y. C. R. R., 7 Lans. 11; Railroad v. Houston, 95 Ú. S. 697; Harlan v. St. Louis, etc., R. R. Co., 64 Mo. 480. Under the circumstances and testimony of plaintiff's witnesses it cannot be claimed that the deceased made vigilant use, or any use, of his eyes or ears, and failed to discover the train in time to stop or turn aside before he got on the track. Salter v. U. & B. R. R. R. Co., 75 N. Y. 273, 278-280; Cordell v. N. Y. C. & H. R. R. R. Co., id. 330, 332; Warner v. N. Y. C. R. R., 44 id. 465, 470. If the statutory signals are not given, men are not to drive along without listening or looking for other sounds or signals of an approaching train, and if other warning is given the defendant is not liable. Palinsky v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424. Neither the fact that the train was a few minutes behind time, nor the speed at which the train is claimed to have been moving relieves the plaintiff from the consequences of want of due care on the part of the deceased. Wilcox v. Rome & W. R. R. Co., 39 N. Y. 358, 367; Warner v. N. Y. C. R. R., 44 id. 465, 469, 470; Salter v. The U. & B. R. R. R., 75 id. 273. The defendant had a right to run trains at such times and at such speed as it saw fit. 39 N. Y. 358, 367; 24 id. 430; 44 id. 465, 468, 469; 47 id. 400, 402; Salter v. U. & B. R. R. R. Co., 75 id. 437; Cordell v. N. Y. C. & H. R. R. R. Co., id. 330.

William C. Ruger for respondent. Defendant was negligent in failing to ring its bell. 1 R. S. 1237, § 38. The defendant was negligent in running its train through this populous village, across its principal business street, at the rate of thirty miles per hour.

Richardson v. N. Y. C. & H. R. R. R. Co., 45 N. Y. 846; Massoth v. D. & H. C. Co., 64 id. 524; Cordell v. N. Y. C. & H. R. R. R. Co., 70 id. 119, 124; Thomas v. D., L. & W. R. R. Co. [U. S. Ct.], "The Reporter," 739, Vol. 12, decided Sept. 1881. The deceased made as vigilant use of his eyes and his ears as the circumstances required. Massoth v. D. & H. C. Co., 64 N. Y. 524; 71 id. 285; 45 id. 846. The obstructions to sight and sound were such as to relieve Salter from the charge of contributory negligence. 71 N. Y. 228, 236; id. 285; 78 id. 338; 79 id. 72; id. 464; Mackey v. N. Y. C. R. R., 35 id. 75; Voak v. N. C. R. R. Co., 75 id. 320; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72; Stackus v. N. Y. C. & H. R. R. R. Co., id. 464. Though it were possible for Salter, by acting differently to have escaped, he cannot be held guilty of the charge of contributory negligence for his error in judgment. Buel v. N. Y. C. & H. R. R. R. Čo., 31 N. Y. 314; Trombly v. C. P. N. & E. R. R. Co., 69 id. 158; Dyer v. Erie R. R. Co., 71 id. 228; Voak v. N. C, R. R. Co., 75 id. 320; Cuyler v. Decker, 20 Hun, 173; Thurber, etc., v. H. B. M. & F. R. R. Co., 60 N. Y. 326, 331; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451, 456; Massoth v. D. & H. C. Co., 64 id. 524; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72; Stackus v. N. Y. C. & H. R. R. R. Co., id. 464. Courts will not nonsuit, where any possible inference can be drawn from any of the testimony, which would relieve from the charge of contributory negligence. Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Kellogg v. N. Y. C. & H. R. R. R. Co., id. 72; Cassey v.N. Y. C. & H. R. R. R. Co., 78 id. 518; Terry v. Jewett, id. 338; Voak v N. C. R. R. Co., 75 id. 320; Dolan v. D. & H. C. Co., 71 id. 285. The rate of speed bore both upon the question of negligence and contributory negligence. Cordell v. N. Y. C. & H. R. R. R. Co., 70 id. 119, 124; Massoth v. D. & H. C. Co., 64 id. 524; Richardson v. N. Y. C. & H. R. R. R. Co., 45 id. 846. The proper test is, did the deceased do as a prudent man would? Kellogg v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 72, 76; Stackus v. Same, id. 464, 468.

FINCH, J.-When this case was last before us on appeal (75 N. Y. 273) we held that, upon the facts proven, the plaintiff's intestate was guilty of contributory negligence which barred a right of recovery. That conclusion was founded upon the rule, grown familiar by its frequent application, that a person upon a highway, in approaching a railroad crossing, is required to make a vigilant use of his eyes and ears to ascertain if there is an approaching train, and if by such use of these faculties, the vicinity of such train may be discovered in time to avoid a collision, the omission to exercise them is such contributory negligence as will bar a recovery for an injury resulting. The controlling facts upon which our judgment rested were those which established that the deceased persisted in

an effort to drive across the track with his load of logs in front of the approaching train, when he could have seen and heard it, if vigilant and careful, in time to have stopped and awaited is passage, or to have turned to the right or the left without venturing upon the rail. The specific facts relied upon were principally the following, viz. that at a distance of one hundred feet easterly from the rails, and all the way from that point to the track, the deceased could have seen the train approaching if had looked; that when within twenty-one feet of the rails an approaching train was visible all the way from the bridge, and if he had then looked it was possible for him to have stopped or turned his horses away from the track; that the highway at that point was smooth and nearly level, so that no difficulty intervened to prevent such stopping or turning aside; that though the day was cold and his neck and ears were somewhat muffled as a protection from the weather, it was hardly to be presumed that he could not have heard the rumble of the coming train; that under the circumstances it was his duty to approach at such rate of speed, and with his horses so under control that he could have stopped; and that no prudent man would have driven his team so near without looking, nor so fast that he could not stop in an emergency.

A new trial has been had under the guidance, and the test of our judgment thus rendered, which has resulted in a recovery by the plaintiff, approved by the General Term, and brought here for our final review. It remains for us only to consider whether the facts have been so changed, or such new facts have been added as to make that a question of fact for the jury, which we decided as a question of law.

It is to be observed that on the former appeal the negligence found to have existed was two-fold, consisting, first, in a careless and heedless approach so near to the track as to put the deceased in a plain position of danger; and, second, of such conduct when in that position as indicated reckless rather than prudent action.

The ground for the first charge of negligence is now fairly dissipated by a new fact, or at least evidence from which a jury might fairly find it. Proof is now given that the deceased could not have seen the train while passing the curve at Spring street at any point on Furnace street more than twenty-one feet easterly from the track. There was a single point on Furnace street, two hundred and thirty feet back from the crossing, where a glimpse of the passing train could be had during the moment in which it was two hundred and sixty-two feet from the crossing; but when the de-* ceased passed that possible point of view, it is plain that the cars were not there, but a long distance off to the south. It is shown, therefore, that no amount of vigilance which depended upon eyesight could have disclosed to deceased the approach of the cars when as far from the crossing as the Spring street curve, until a point

was reached on Furnace street about twenty-one feet from the rails. There is evidence that the deceased approached the crossing upon a slow trot, and that his horses were kind and well broken. Two witnesses who were driving behind the deceased, and like him were on sleds drawing each a load of logs, and, therefore, were similarly situated, except as to distance from the crossing, testify that they neither heard nor saw the approaching train. It is also proved that the train was on the curve at Spring street when Salter reached the point on Furnace street from which it could be seen. The end of the curve toward the crossing was four hundred and thirty-five feet therefrom, and if the train was moving at the rate of thirty miles an hour, as some witnesses estimate, it was distant from the crossing, measured in time, only ten seconds, and even if the estimate of speed be reduced to ten miles an hour, the train would run from the curve to the crossing in half a minute. If there was any place on the road at which the signal of the bell or the warning of the whistle, required by law, were essential to the safety of the traveller, it was at this crossing, where sight could be of no service except at the moment when danger was already imminent, and safety turned upon the judgment of a few swift and frightened seconds. The facts thus developed go far to relieve the deceased from the imputation of negligence in approaching the point of danger. If he could have seen one hundred feet away from the rails the movement of the train, as we held established on the former appeal, and without looking, blindly and carelessly drove to the point of danger, it was easy to pronounce him negligent. But now that the evidence permits the inference that he could not see, however vigilant or watchful, until within twenty-one feet of the track, and when his horses' heads must have been within four feet of the rails, it is impossible to say that his approach to that point was necessarily negligent, or take the facts and circumstances from which the question was to be determined away from the jury.

What next occurred has also its changed and modified conditions. The standard by which we should judge the conduct of a man brought suddenly and without fault into the presence of danger ought not to be rigid and severe. The deceased in the present case appears to have become alarmed and aroused to a sense of peril, either by something seen or heard, at the first moment in which a sight of the cars was possible. He looked both ways. It is quite probable that he saw the engine coming. He should have stopped even then, or turned aside, if he could. One would think that the instinct of self-preservation would have taught him that; but in any event it was his duty, and nothing could excuse a reckless effort to cross in front of the train except the impossibility of doing otherwise. There is evidence now from which a jury would be justified in thinking that he tried to stop and tried to turn, but could do neither. It is shown that at the crossing the railroad