Ernst agt. The Hudson River Railroad Co. COURT OF APPEALS. MARTHA ERNST, Executrix, &c., of HENRY ERNST, deceased, respondent agt. THE HUDSON RIVER RAILROAD COMPANY, appellant. As we have reported this case exclusively, including the first decision of the general term of the supreme court in March, 1860 (19 How. 205). the first decision of the court of appeals, September term, 1862 (24 How. 97), and the second decision of the court of appeals, March term, 1866 (ante, p. 61), we cheerfully publish the dissenting opinion of Judge SUTHERLAND, delivered when the case was first decided in the court of appeals (24 How. 97), which last opinion embraces, as we understand, all the opinions delivered in this important case. In giving us this opinion for publication, Judge SUTHERLAND made the following statement: "The statement of facts preceding the within opinion, was drawn by me with great care, and was deemed to be impartial and accurate, and sufficiently full. If it is thought worth while to report this dissenting opinion, I want the statement of facts preceding it reported." Both are accordingly given below.-REP. September Term, 1862. THIS is an action under the statute to recover damages of the defendant for negligently causing the death of the plaintiff's testator, Henry Ernst. The action has been twice tried. On the first trial before Mr. Justice GOULD and a jury, the plaintiff was non-suited, but a new trial was granted, on the ground that the case should have been submitted to the jury. The second trial was before Mr. Justice HOGEBOOM and a jury, at the Rensselaer circuit, in February, 1861, when a verdict was rendered for the plaintiff for $2,500. A motion was made for a new trial on the judge's minutes, which was denied. The defendant appealed to the general term from the judgment entered on the verdict, and from the order denying a new trial. The general term affirmed the judgment and the order denying a new trial, and the appeal to this court is from the judgment of affirmance. It is admitted by the pleadings, that at the time of the accident which caused the death of Henry Ernst, the defendant managed and operated the Troy and Greenbush Rail Ernst agt. The Hudson River Railroad Co. road, located on the east bank of the Hudson river, extending from Troy to Greenbush; and it appeared on the trial before Mr. Justice HOGEBOOM, that at or in the village of Bath, the railroad crosses a public road or highway, leading from Sandlake, in the county of Rensselaer, through the village of Bath, to a ferry over the Hudson, called the Bath Ferry. It further appeared, that on the morning of the 29th day of December, 1855, the decedent left his residence in Sandlake for Albany, with a pair of horses and an empty sleigh, and on arriving at Bath, stopped at Dearstyne's tavern, about one hundred and fifty feet east of the railroad track at the crossing; that soon afterwards the decedent and one Simmons, who was with him, came out of the tavern, and Simmons proceeded on foot to the ferry to detain the boat for the decedent, who unhitched his horses, and seating himself on a board across the box of the sleigh, which was about ten inches in height, drove directly towards the boat, and that as he approached the railroad crossing, the defendant's train of cars going south, came in collision with the decedent's horses, causing his death. Several witnesses, who it would appear were competent to judge, testified that the train was going at the time of the collision, from thirty to forty miles an hour. Several of the employees of the defendant estimated the speed at from ten to fifteen miles an hour. Several witnesses, some eight, who were in a situation to hear, testified that the bell of the engine was not rung or the whistle blown until the moment of collision. The engineer on the train, and one or two other employees of the defendant, testified that the bell was rung and kept ringing, for a distance of eighty rods before reaching the crossing, and that the whistle was blown eighty rods before reaching the crossing. It also appeared that ordinarily there was a flagman stationed at the crossing; that at the time of the accident, Miller, the regular flagman, was absent, and a man by the name of Rouse, acted as temporary flagman; that when Ernst agt. The Hudson River Railroad Co. Rouse saw the decedent and the train approaching the crossing, he became excited, and made motions for him to stop; that he did not waive any flag, but made the motions with his hands or arms. It appeared that Rouse had no flag. It further appeared that there was a station house, twelve by sixteen feet in size, located east of the railroad track, and just north of the street leading to the ferry; that in going from the tavern down the street to the railroad track, the view north up the track was obstructed by trees and high ground, so that it could not be seen for a greater distance than thirty rods, until you got within about two rods of the station house; that from that point, as you proceeded on towards the station house, you could see further up the track; at one point for a distance of forty or fifty rods; that the railroad crosses the street nearly on a level; that from the railroad to the ferry, the road for teams was very steep, and that it was one hundred and sixty feet from the railroad to the ferry dock. It also appeared that the decedent was a teamster, and frequently traveled the road, and knew about the crossing; that it was a very cold day, and he had a shawl about his neck and face; that several persons standing near the track, as they saw the decedent approaching the track hallooed to him to stop, to hold on; that Rouse and Simmons motioned to him to stop. Hunter, who hallooed to him "hold on, there come the cars," testified, that when he saw the decedent and so hallooed to him, the cars were ten or twelve rods above the crossing; and it would appear from his testimony that the decedent was then about thirty-five feet from the railroad track, and fifteen or twenty feet from Hunter. From the testimony of other witnesses, it would appear that the decedent was two or three rods from the track when he was hallooed and motioned to. One witness says he was in the act of driving on the track when Hunter made motions with his hands. The witnesses did not entirely agree as to the speed with which the decedent approached the railroad. Simmons tes Ernst agt. The Hudson River Railroad Co. tified, that when he heard the cars coming, he looked back and saw the decedent coming, one horse on a jump and the other on a trot. Other witnesses testified that the horses were on a trot; one witness says, on a moderate trot. Another witness testified, that when he first saw decedent, he was forty feet from the track, and the horses were on a walk, and walked until struck by the engine. The hallooing and motions were differently understood by the bystanders; one thought they meant keep off, and another, come on the boat. Others did not understand the meaning at all. As the decedent was approaching the track, some one on the ferry boat made signals and motions for him to come on. It appeared that the decedent drank spirituous liquor at three different places before he arrived at Bath, but it did not appear that he was intoxicated. It did not appear that the decedent looked either up or down the track as he approached it, or that he turned his head either way when hallooed to. At the close of the evidence the defendant moved for a dismissal of the complaint, on the grounds that there was no proof that the death of the plaintiff's testator was caused by any wrongful act, neglect or default of the defendants, and also upon the ground that the case showed that the negligence of the decedent caused, or contributed to cause his own death. The court denied the motion, and submitted the case to the jury, and to this the defendant excepted. JOHN H. REYNOLDS, for the appellant. SUTHERLAND, J., dissenting. It is conceded in the case, that the court correctly stated to the jury the rules of law applicable to questions of negligence. The only question in the case then is, whether the court should have non-suited the plaintiff, or dismissed her complaint at the close of the evidence. The counsel for the appellant does not ask that the judg Ernst agt. The Hudson River Railroad Co. ment should be reversed on the ground that the question as to negligence on the part of the defendant, or its employees, should not have been submitted to the jury; but on the ground that the decedent was himself plainly negligent, and by his negligence caused, or contributed to cause, his own death. There is no doubt as to the principle of law, that if the decedent by his own negligence contributed to cause his own death, that the plaintiff cannot recover, however negligent the defendant or its employees may also have been. The question then is, whether it was the province of the court or of the jury in this case, to pass upon the question of negligence on the part of the decedent. In my opinion, it was the province of the jury, and for the grounds of this opinion I refer to my opinion in the case of Amanda Rhodes, Administratrix, &c. agt. The Buffalo and State Line Railroad Company, decided at the last term of this court. This case never has been reported, but it seems that a portion of my dissenting opinion in the case was taken and reported as my dis senting opinion in Wilds agt. The Hudson River Railroad Co. (24 N. Y. R. 444, &c.), in which case I also dissented. It may be that the supreme court thought that a verdict for the defendant, would have been more or equally satisfactory, but I do not see upon what principle that court could have granted a new trial. It could not have done so on the ground that the verdict of the jury was against the weight of the evidence as to the carelessness or negligence of the decedent. There was no material conflict in the evidence as to the facts or circumstances relating to the conduct of the decedent, or bearing on the question of carelessness on his part. There may have been a conflict between these facts or circumstances, as arguments on the question of the negligence of the decedent; that is, that some of these circumstances may have tended to show great carelessness on the part of the decedent, and others of them less carelessness, or usual care and prudence. It appears to me, if the general term had granted a new trial in this case, it must have been solely on the ground that the |