#### Elizabeth Gonzales, administratrix, &c. plaintiff and respondent, *vs.*The New York and Harlem Railroad Company, defendants and appellants.

1. Where a person alleged to have been killed upon the defendants’ railroad, by negligence of the defendants or their employees, while stepping upon the ground from a train of cars, near a station, was proved to have been struck by an express train, so that he fell under the wheels of the train from which he came, and was run over; *Held*that this was sufficient proof that he came to his death by the acts'of the defendants’ agents.

2. It is clearly negligence for a train of cars to approach a cross road without the blowing of a whistle, or ringing of a bell, to give notice of its approach.

3. It is not negligence to cross a railroad track, where there is nothing to notify a traveler on the highway crossing it, that a train of cars is approaching.

*944. *It seems*that all persons crossing a railroad, on a highway, are not bound to know the time when a train of cars may he expected, according to the time table of such road. *Ter*Robertson, Ch. J.

6. Although travelers on a road may he hound to use, and are entitled to rely on, their senses *to*discover any approach of danger, yet they are entitled to expect that, where the sight cannot he Used, the means provided hy law for warnings, addressed to the sense of hearing, shall he used hy trains of cars on railways crossing such road.

6. Under the decision in *Ernst*v. *The Hudson River Railroad Company,*(35 *N. 7. Rep.*9,) a traveler on the highway is not hound to look out for a train of cars, when the law requires the railway company to give signals of its approach. Nor is a passenger, descending from a train at a station, hound to look out to see whether another train is approaching, before he crosses the track, where no signal to that effect has been given. And this, although by the time table, another train is *nearly due*at that station.

7. Neither the vicinity of a person’s residence to a railroad, nor his habit of traveling on it, or his familiarity with its time tables, make any difference as respects his right to he informed, by the usual signals, of the approach of a train of cars.

(Before Robertson, Ch. J., and Monell and McCunn, JJ,)

Heard December 7, 1867;

decided July —, 1868.

This was an'action to recover damages for the negligence of the agents and employees of the defendants, hy which the plaintiff’s husband (John H. Gonzales) was killed. The complaint, after the usual allegations as to the incorporation of the defendants, and their ownership of the road, alleged, that about the 15th day of November, 1864, at the city of New York, the said John H. Gonzales became a passenger in the defendants’ cars, for the purpose of traveling from said city to "West Mount Vernon, a station on the road, being one of a train of cars running from the city to that station, and *beyond;*that, while Gonzales was a passenger in such car and train, as he was carefully, and without any negligence on his part, in the act of stepping out of the same at the West Mount Vernon station, for the purpose of leaving to go to his home, situated within á few rods of such station, another train of cars, belonging to the defendants, being an express train, .under the care and control of the agents and employees of the defendants, came at full speed on the adjoining track of the defendants’ road, in *95the opposite direction, and carelessly and negligently ran against Gonzales, and did push "and throw him under the wheels of the first mentioned train, and the same passed over his body, thereby breaking and crushing his legs and body, and otherwise mangling, bruising and lacerating his body; that such injuries to Gonzales were caused and produced by the carelessness and negligence of the agents and employees of the defendants so having the charge and control of those two trains of the defendants, and without any carelessness or negligence whatever on the part of the said Gonzales; that by reason of the premises, about the 15th day of November, 1864, Gonzales died of the injuries received by him as aforesaid, through the carelessness and negligence of the defendants aforesaid, and intestate: that about four days afterwards letters of administration were duly granted by the surrogate (to whom jurisdiction in that behalf belonged) upon the estate of the said deceased unto the plaintiff, (being the widow of Gonzales;) that the death of Gonzales was caused solely by the aforementioned act, neglect and default of the defendants, perpetrated by their agents as aforesaid. Wherefore, the plaintiff demanded judgment against the defendants, for the sum of $5000, together with costs and disbursements.

The answer was a general denial, and alleged that the death of Gonzales was caused wholly by his own negligence and carelessness.

The action was tried before Justice Garvin and a jury. The following facts appeared: John H. Gonzales, the plaintiff’s deceased husband, had resided about fourteen years at West Mount Vernon, about one hundred yards west of the West Mount Vernon station, upon the defendants’ road. There was a double track, and a platform for passengers on each side of the road. On the westerly side of the track was the depot and a platform for passengers to get in and out of the cars when going southerly, and on the easterly side was a platform for passengers traveling northerly. The easterly platform was one hundred and eighty-*96five feet long, and the southerly end of it came within a few feet of the northerly side of the cross road above mentioned. Gonzales was in the habit of traveling very frequently on the road, and of coming to his home by the train on which he was injured. 1 His house was in sight of the station. The time for the train in question to .leave "West Mount Vernon, proceeding northerly, was, by the time table, 3.27 r. M. It was an accommodation train, and necessarily, varied slightly in its time of arrival and departure, owing to variations in the numbers of passengers and detentions at the previous way stations. The express train going south (which did not stop at that station) was due there at 3.28 p. m. It was in the habit of meeting the above mentioned accommodation train sometimes north of the station, sometimes south of it, usually south of the station ; there being but one minute difference between the time of the two trains at that station, according to the time table, and the accommodation train being liable to detentions at way stations, which would prevent its being exactly on time. On the 15th day of November, 1864, Gonzales left New York for his home on the above mentioned aecomdation train. When the train was approaching the station, and before it had reached its usual stopping place, Gonzales jumped or got off of the car he was on, on the westerly side, and landed in the cross road above mentioned, at the -same moment the express train, going south, passed down ■on .the west track. There was about three feet space between the cars of the two trains, there being seven feet distance between the tracks, and the cars projecting two feet on each side. In some manner not explained, Gonzales got under the wheels of one of the cars belonging to the train which he had just left. He was dragged a short ■distance; when the cars stopped he was found under the wheels, with both legs crushed, and died from his injuries. His body, when extricated from under the car, lay on or near the north line of the cross road. The track was straight, and the view' unobstructed for a distance of more *97than five hundred and fifty feet northerly from the place where Gonzales got off. A witness for the defendants, a surveyor, proved that an approaching train was visible at the distance of over twelve hundred feet from that point. The" plaintiff’s witnesses conceded five hundred and fifty feet, and admitted that from the station the smoke of an approaching train could be seen at the distance of eleven hundred feet. The brakeman of the defendants testified that, from the rear of the rear car, he leaned over and saw the approaching express down train before it reached the up train. There was no proof that any whistle was blown or bell rung upon the approaching train, before it came up. The jury found a verdict in favor of the plaintiff for $4000.

A motion was made on the judge’s minutes for a new trial, on exceptions, and on the ground that the verdict was against the weight of evidence. An order was entered denying the motion, and an appeal was taken from that order, as well as from the judgment.

*C. A. Rapallo,*for the appellants, defendants.

1. The verdict was against the weight of the evidence. It was clearly and distinctly proved by one witness on the part of the plaintiff, and four witnesses on the part of the defense, that the train Gonzales left, was moving towards the station when he got off or jumped off. The plaintiff’s witnesses, Heller, Patridge, engineer of the down train; Verdón, the conductor; McAuliff, the brakeman; and Richard O’Connor, the baggage master, testify *that the train was moving.*The only opposing testimony is that of Lavinsky. His statement is extraordinary and incredible, but if true, it does not contradict Heller, or Patridge, or Verdón, who are the only other witnesses who saw Gonzales get off, and who testify positively that the train was not then stopped. The stoppage testified to by Lavinsky was but for an instant. His back was to Gonzales, and there is no evidence that Gonzales got off during this alleged instant of stoppage.

*98II. The court should have dismissed the complaint. The undisputed facts show gross negligence- on the part of Gonzales in getting off on the west track, when the express train was due, and before his own train had reached its stopping'place. If to save time he undertook to get off before the defendants had reached the place for discharging their passengers, he did so at his own peril, and the company should not be held responsible. They were not bound to anticipate that passengers would get off before the cars reached their stopping place, or to take precautions to make it safe for them to do so. Furthermore the manner of his getting off was grossly negligent.

III. The court erred in admitting testimony that Gon.zales and others were in the habit of getting off on the west side, instead of using the platform. If it was negligence to do so on the occasion in question, the fact that he and others were habitually negligent was not a sufficient answer. The testimony was calculated to mislead the jury. There was no evidence that the employees of the road ever sanctioned passengers in getting off on the west side when the express train was due, nor who the employees were, nor what was the extent or nature of their authority. The exceptions to this testimony were well taken.

IV. The exception to the refusal of the judge to charge the second proposition, as requested, was well taken. The defendant was entitled to a specific instruction on that point for the only negligence which could possibly be attributed to the defendants was the alleged omission of the express train to blow the whistle. If' not guilty of this omission there was no negligence whatever on the part of the defendants. Two witnesses testify positively that the whistle was blown. The engineer who blew it, and the brakema-n of the up train who heard it' and looked out. The only testimony opposing was that of persons who say they did not hear it. If the jury believed the engineer, they were bound to render a verdict for the defendants, -and should have been so instructed, clearly and positively. On *99the contrary, from the. instructions given the jury, they might infer that the judge ruled adversely to that request.

V. Under the circumstances attending the alighting of Gonzales from the car he was on, it was his duty to have looked along the line of the road before alighting or going on the west track.

1. The express train had not passed, and Gonzales knew, or by a moment’s reflection would have known, that it was to be expected every instant. He could not with safety depend upon hearing the whistle, as the noise of Ms own train would be likely to drown it. He was about to get out at a place other than that provided for the landing of passengers, and before his train had reached its stopping place. The track was straight and his view unobstructed for a distance of over five hundred and fifty feet, at the lowest estimate. The approaching train, even if traveling at thirty miles an hour, was not going more than ten times as fast as a man usually walks; it must, therefore, have been within less than one hundred feet of Gonzales, when he alighted. Under these circumstances, if the court did not see fit to nonsuit, it should at least have instructed the jury, as requested, that it was the duty of Gonzales to look out before going on the track. The refusal of this instruction, and the limited instruction given, authorized the jury to assume that it was not negligence in Gonzales to jump on the track without looting or taking any precaution whatever against accident from a down train.

2. The well established and salutary rule, that a person about to go upon the track of a steam railroad is bound to look before doing so, has not been abrogated; and the omission to look is excused only in certain exceptional cases, of which this is not one. The question is clearly presented in this case whether that rule is still in force. If it is, the exception taken to the. refusal to Charge the defendants’ third proposition, and to the exception to the charge as given, were well taken. The case of *Ernst*v. *Hudson River Railroad Company,*(35 *N. Y. Rep.*9,) does not abrogate the *100rule, or overrule the previous cases. But even if it should be considered as having that effect, and should the opinion of Hon. Justice Porter be held to state the law correctly, still this is one of the cases in which even .according to that opinion a party is bound to look before going on the track. *(See*35 *N. Y. Rep.*36, 47, 48; *Beisiegel*v. *Central Railroad*Company, 34 *id.*622; *Spencer*v. *Utica and Syracuse Railroad, 5 Barb.*337, 339; *Haring*v. *Erie Railroad,*13 *id.*9, 15; *Dascomb*v. *Buffalo and State Line Railroad Company,*27 *id.*222, 226, 227, 229; *Brooks*v. *Buffalo and Niagara Falls Railroad,*25 *id.*600; *North Pennsylvania Railroad*v. *Hitman,*49 *Penn. Rep.*60; *Steves*v. *Oswego and Syracuse Railroad,*18 *N. Y. Rep.*422, 425, 426; *Wilds*v. *Hud, River Railroad,*24 *id.*430, 440; *S. C.,*29 *id.*327, 328, 331.)

*R. W. Van Pelt,*for the respondent, plaintiff.

I. The objection and exception of the defendants to the proofs offered, as to which side the deceased always got off the train were not well taken. As the defendants set up contributing negligence on the part of the deceased,- it was competent to show that he and other passengers had always got off on that side with perfect safety; that there was no notice or prohibition on the part of the company against such practice, but, on the contrary, their agents and employees were in the habit of giving it their sanction, by assisting them to get off on that side, and this state of facts is uncontradicted.

II. None of the exceptions to the judge’s charge, and to his omissions to charge as requested, are well taken. The charge covers the entire case, and is in perfect conformity with the rules and principles laid down in the' leading modern cases. *(Beisiegel*v. *New York Central Railroad Company,*34 *N. Y. Rep.*622.) In the opinions in that case, all the authorities bearing .upon the question of contributing carelessness, are carefully examined, and the charge of his honor, Justice Garvin, was given with that case before him.

ITT. The jury were charged expressly that to entitle the *101plaintiff" to recover, negligence must not only be shown on the part of the company, but an entire absence of negligence on the part of the deceased must also be shown.

IV. The evidence abundantly sustains the verdict, and the judgment should be affirmed.

By the Court, Robertson, Ch. J.

One of the witnesses in this ease, *(W. S.*Seller,) who saw the whole accident, testified expressly, that as the husband of the plaintiff was stepping on the ground from the steps of the car from which he descended, the express train came down and struck him. This was sufficient proof that he came to his death by the acts of the defendants’ agents. Two witnesses, *Mr. LavinsM*and *Mrs. Zimberland*testified that they did not hear any whistle sounded, or bell rung when the express train came down. The former stated he thought he would have heard, it. The latter, who was looking out for her children on the track,» and heard no whistle or bell of that train, always watched that train more than the up train, because the former did not stop. She testified that no whistle was sounded until the express train had passed by the station where the plaintiff was killed. About five or six hundred feet north of that place was a curve on that road. One whistle was given by the express train while approaching that curve, and one after passing it. This was merely a signal to brake up. But such train could not have been stopped before reaching the station, and there was no evidence of any steam whistling or sounding of bells while approaching the cross-road, where the plaintiff’s husband was killed. This was clearly negligence on the part of the defendants. *(Renwick*v. *N. Y. Central Railroad Co.,*36 N. *Y. Rep.*132.)

It only remains to be determined whether the plaintiff’s husband was guilty of concurrent negligence. That question was fairly submitted to the jury. So that unless the evidence is conclusive upon that question, the verdict must be sustained. There was some conflicting evidence as to *102the stoppage of the train, from which the deceased descended. *Lavinski*testified it stopped a very little, and then went on. *Heller*says the stopping and the stepping off of the deceased was simultaneous. Some other witnesses testified that it was moving until the accident happened. The locomotive of that train had then reached a platform, where such trains usually stopped, and the deceased was injured on a crossing twenty to twenty-five feet from such platform. The learned judge, before whom the issues in this case were tried, submitted to the jury the question whether the decedent’s “ getting off on that side of the car, going toward the passenger depot, and being on that side, and the public highway being just where he got off',” was the exercise of ordinary care and prudence.

It is not negligence to cross a railroad track where there is nothing to notify a traveler on the highway crossing it, that a train of cars is approaching. I do not know that all persons crossing a railroad on a highway are bound to-know the time when a train of cars may be expected according to the time table of such road. They are undoubtedly bound to use, and entitled to rely on their senses to discover any approach of danger, but are entitled to expect that when the sight cannot be used, the means provided by law for warnings addressed to the sense of hearing shall be used by railway trains. *(Ernst*v. *Hudson River R. R. Co.,*32 *How.*61. *S. C. 35 N. Y. Rep.*9.) Under the decision in the case last cited a traveler on the highway crossing a railway, is not bound to look out for a train when the law requires the railway company to give signals of its approach. *(Id.)*Unless the deceased was imperilled by descending from the cars while in motion, he was guilty of no more negligence in being where he was, when struck by the express train, than if he had been walking across the track. His having previously been a passenger upon another train of cars made no difference. The learned judge charged the jury that if the train had not stopped when the deceased got off, the *103plaintiff could not recover, and their verdict disposes of that question.

There were five requests made by the counsel for the defendants for instructions to the jury. The second of which was in substance that the express train being visible at a distance of 550 feet, and *being nearly*due, it was negligence for the deceased not to have looked in the direction in which it was expected, before going on the track. This was directly contrary to the principle adopted in *Ernst*v. *Hudson River R. R. Co. (ubi supra,)*and was properly refused. The other requests related to the stoppage of the car when the deceased got off, the blowing of the whistle to brake up, a sight of the express train by the deceased, and the lateness of that train, all of which have been disposed of, except the last, and there was no testimony requiring such instruction. There was no evidence whether the express train was late or not; the engineer simply stated that either it was ahead of time or the up train behind, a fact which had no bearing, except to show that according to the time table, the deceased had a right to expect to have a minute in which to cross, before the train came down. I do not think that the vicinity of the deceased’s residence to the road, or his habit of traveling on it, or familiarity with its time tables, made any difference as to his right to be informed by the usual signals of the approach of a train. A great many reasons might prevent the arrival of the train in time. The law having provided a better means of warning him of danger, he was entitled to rely upon its being complied with.

I think the judgment should be affirmed, with costs.