#### Marcus Schwartz *et al.,*plaintiffs and respondents, *vs.*The Hudson River Railroad Company, defendants and appellants.

1. In an action to recover damages against a railway corporation, for injuries to ’ property of the plaintiffs by a train of the cars of the former, where the latter while driving in a wagon upon the highway, attempted to cross the railway track in the day time, and seeing at a distance of forty feet, a train of cars approaching, turned their horse’s head towards the locomotive and attempted to back him from the train, but he being frightened, they turned his head away towards a neighboring fence, in a narrow space where the passage was obstructed, and the wheel of their wagon was struck by the train; *Held*to be a case of contributing negligence on the part of the plaintiffs, or of unavoidable accident on the part of the defendants, unless there were other proof of their negligence.

2. The want of a flagman at a crossing of a railway by a highway, where a train of cars was approaching a neighboring station, after its speed had been greatly reduced, the brakes applied, the engine reversed, the bell rung, a whistle blown, and every thing done which could be done to stop the train, is not negligence, or proof of it, in respect to travelers on such highway.

3. The use of flags on a railway, which are merely signals to the engineers and other employees of a railway company, not being required as regards travelers on a highway crossing such railway, by any rule of law or statute, the absence of them is not negligence as regards such travelers.

(Before Robertson, Oh. J., Garvin and Jones, JJ.)

Heard November 5,1866;

decided May 16, 1867.

This was an action to recover damages for injuries to a horse and wagon of the plaintiffs, injured by being struck by a train of cars of the defendants, while on their railway.

The complaint claimed that through the negligence, want of care and skill of the defendants’ servants, on the 20th of December, 1864, a train of the defendants’ cars ran against, into and upon the wagon of the plaintiffs, whereby the property of the plaintiffs was injured and destroyed, to their damage. The defendants deny all these allegations, in their answer, and aver that the plaintiffs’ negligence caused, or contributed to cause the injury and damage.

Upon the trial before one of the justices of this court and a jury, when the plaintiffs rested, and also when the evidence *348closed, the defendants’ counsel moved to dismiss the complaint on three grounds: 1. That the negligence of the plaintiffs contributed to the accident. 2. That there was no evidence showing any negligence in the defendants. 3. That there were no questions of fact to submit to the jury. These motions were denied, and exceptions taken to the ruling.

It appeared in evidence that one of the plaintiffs, (Schwartz,) while in their wagon and driving upon the public highway, towards the village of. Yonkers from the west side of the track of the defendants, and within about forty feet of the railroad track, saw the locomotive coming. There was no flag to be seen at the crossing, either white or red. The engine - then was about forty feet from him; he intending to cross the track, but when he saw the éngine, he turned the horse’s head toward the engine and tried to back him up away from the train, but the horse became frightened and would have run into the train, had the plaintiff not turned his head around the fence. Just then one of the cars struck the front wheel of the wagon. The engine did not touch the wagon or horse. At that place there was an obstruction, and the space was narrow. This accident was in the day time, between ten and eleven o’clock in the morning. The train was a down train, from Albany to New York.

A witness for the plaintiffs, (Francis Boynton,) testified that the plaintiffs got on to the track, at one time ; they were on the track when the horse took fright; they reined him up tight and wheeled him around; the train was going slow, breaking up. This was the evidence on the question of the negligence of either the plaintiffs or the defendants.

The testimony of the defendants’ engineer on ■ the train, showed that the speed of the train had been very much reduced approaching the station at Yonkers, where it stopped that morning; the brakes had been applied, in which way, engineers usually check their speed.. The engine was about fifty feet from the crossing when the witness saw the plaintiffs ; they were then twenty or-twenty-five feet from the rails; they tried to cross the track in front of the engine. The witness blew *349the whistle, reversed, the engine, put on the brakes, did all he could to stop the train. He knew he could not stop the train before he got to the crossing, but reversing the engine would give the plaintiffs a little more time to get away. Dock street is one side of the station, and the draw bridge on .the other. The witness was afraid if they struck him it would throw the train off the track and they would go off the drawbridge. Flags are signals for the railroad, and nothing else. Flagmen are put at dangerous places. The larger proportion of the flagmen are at places where there are no crossings. The white flag is a signal that all is right. A red flag is a signal of danger ; it is a signal to stop. Flagmen are for various purposes for the use of the road, to observe switches and see that •the drawbridge is right, and whether trains are at the stations and the like.

*Matthews <& Weaver,*for the appellants, defendants.

I. It will be conceded that the defendants are a railroad corporation, legally organized and authorized to own, build, forever maintain and operate a railroad from New York to Albany, and among other things to propel their cars by steam. It will be conceded, too, that the company were not violating any statute law when the accident occurred, but were then in the legitimate exercise of powers, conferred hy their charter and the laws of the state. It follows, therefore, that to hold the company liable in this matter, at all, resort must be had to the common law.

II. The plaintiffs, to entitle themselves to recover, must show that the defendants were guilty of negligence, and that the plaintiffs did not, by their *own*negligence, contribute to the injury sought to be redressed ; inability to establish *loth*or *either*of these propositions defeats a recovery. *(Button*v. *The Hudson River R. R. Co.,*18 *N. Y. Rep.*248, 251. *Steves*v. *The Oswego and Syracuse R. R. Co., Id.*422. *Wilds*v. *The Hudson River R. R. Co.,*24 *id.*430, *reaffirmed in Same*v. *Same*29 *id.*315. *Ernst*v. *Same,*24 *How.*97.)

*350III. The defendants were running their cars at a proper time and in a proper manner. It was the regular train. The bell had been rung and'the whistle sounded as required by law. The speed of the train had been slackened, preparatory to stopping at the station. In addition to all these precautions, the defendants used every means in their power to stop the train when it was seen that Auerbach’s intentions were to cross the track in front of the train. But it is urged that the defendants are chargeable with negligence, because they had no flagman there at the time. In the first place, there is no law imposing any such duty on the company; all the statute requires is, that the bell be rung *or*the whistle sounded. In the next place, flagmen are stationed for the uses, purposes and government of the road *only,*and not as guides or warnings for the use of those crossing the track. As the witnesses say, “They are stationed at exposed or dangerous places, without reference to crossings; they are signals for the use of the road ; they are for the purpose of indicating to a train, as it approaches such places, that there is, or is not, danger; the larger proportion of them are stationed where there are no crossings.”

. IV. But even conceding that the defendants were bound to have a flagman stationed at the place of the accident, the plaintiffs have no cause of complaint, unless *they*were faultless, and the absence of the flagman contributed to the injury. See remarks of the court in *Steves*v. *The Oswego and Syracuse Railroad Co.,*(18 *N. Y. Rep.*425.) See also *Wilds*v. *Hudson River Railroad Co.,*(24 *Id.*430; *reaffirmed in*29 *id.*315)

In the case at bar, Auerbach *saw*the, train when he was out of danger. What other warning could he require ? What other or better warning could the company give *?*He was accustomed to pass at this crossing. He had control of his movements. He swears his horse was going *slow.*He saw, and unless he was utterly blind or indifferent to his safety, *must*have *known*there was danger. The presence or absence of the flagman could hot influence his conduct. When he saw *351the train approaching, he was, as he swears, about forty or fifty feet from the track; and as the engineer swears, about twenty-five feet from the rails. According to his own and the engineer’s testimony, (and that is all the proof as to that point,) he was out of danger when he saw the train approaching. All he had to do was to *stop*and *wait*till the train passed. No action or omission on the.part of the company authorized or justified him in closing his eyes to danger that he could avoid ; and thus not only recklessly expose his own life and property, but imperil the lives and property of others. He comes into court, therefore, as a co-operator and actor in producing the injury sustained, and under the law as administered in such cases, is not entitled to recover. See on the subject of mutual negligence the case of *Sheffield et al.*v. *The Rochester and Syracuse R. R. Co.,*(21 *Barb.*339,) which is a case very much like the case at bar, being also to recover damages for injuries to a horse and wagon in crossing a railroad track. The court, in this case, held that a nonsuit should have been granted. See also the case of *Brooks*v. *The Buffalo and Niagara Falls R. R. Co.,*(25 *Barb.*600, *affirmed in Court of Appeals and*reported in 27 *id.*532, *in a note to another case,)*which was also for injury to a span of horses and wagon crossing the track. The court, in that case, held that the judge at circuit erred in submitting the cause to the jury. The case of *Dascomb*v. *The Buffalo and State Line R. R. Co.,*(27 *Barb.*221,) was also for damages to horses and wagon crossing the track. The cases relative to co-operative negligence are here collected and discussed by Judge Marvin, who, at page 229, holds that it was *error*in the judge at circuit to refuse to charge “that if the plaintiff could have seen the approaching train, by looking in the direction of it, before he reached the crossing, and in time to have avoided the collision, his attempt to cross was negligent.” See also the case of *Mackey*v. *The N. Y. Central R. R. Co.,*(27 *Barb.*528,) as to the question of concurring negligence defeating a recovery. The case of *Brendell*v. *The Buffalo and State Line R. R. Co.*in the Superior Court of Buffalo reported at page 534 of 27 *Barb,*is also an important case *352bearing on the same question. See also the case of *Cox*v. *The President, &c. of Westchester Turnpike road,*(33 *Barb.*414.) Also page 429 of the same volume, *Bieseigal*v. *N. Y. Central R. R. Co., (Id. p.*429,) both being cases where the doctrine of mutual or co-operative negligence is discussed ; the latter being for an injury to the plaintiff in crossing the track. See also the cases of *Butterfield*v. *Western R. R. Co.,*(10 *Allen,*532;) *Fox*v. *The Town of Glastenburgh,*(29 *Conn. Rep.*204;) and *Witherley*v. *Regents Canal Com., English Com. Law R. vol.*104, *p.*2, *(Common Bench Reports, N. S. vol.*12,) where the cases are collected, in discussing concurring negligence. See the English cases collected in *Wilds*v. *The Hudson River R. R. Co.,*(24 *N. Y. Rep.*434.) See also *Owen*v. *The Hudson River R. R. Co.,*(7 *Bosw,*329,) where the court reiterates the doctrine, that where the negligence of both concurred to produce the injury, the plaintiff is not entitled to recover, saying : “ If it w.ere negligence to attempt to drive through the streets a car which was not furnished with proper brakes in good order, still, if the negligence of the plaintiff concurred with that of the defendants in causing the injury, the defendants are not liable.” *(Trow*v. *The Vermont Central R. R. Co.,*24 *Vermont Rep.*487. *Ernst*v. *Hudson Biver R. R. Co., 35 N. Y. Rep.*9.)

V. The plaintiffs’ negligence having contributed to the injury, there was no question of fact to be submitted to the jury, and the court erred in refusing the motion for a nonsuit. *(Steves*v. *The Oswego and Syracuse R. R. Co.,*18 *N. Y. Rep.*422. *Wilds*v. *Hudson River R. R. Co.,*24 *id.*430. *S. C.*29 *id.*315. *Ernst*v. *Hudson River R. R. Co.,*24 *How.*97. *Sheffield*v. *The Rochester and Syracuse R. R. Co.,*21 *Barb.*339. *Brooks*v. *The Buffalo and Niagara Falls Railroad Co.,*25 *id.*600.) This case affirmed in the Court of Appeals as reported in 27 *Barb.*532. *(Button*v. *The Hudson River R. R. Co.,*18 *N. Y. Rep.*248.)

*A. Sanford,*for the respondents, plaintiffs.

The motions to dismiss the complaint were properly denied, *353because there was proof of negligence on the defendants’ part, and hence there were questions of fact, for the jury to pass upon. *Wilds*v. *The Hudson River Railroad*Company, (24 *N. Y. Rep.*430,) presents the strongest case in the books to sustain the defendants. It differs, however, from the present case in two important respects. 1st. In Wilds’ case, it was apparent that the plaintiff was very negligent. 2d. It was also evident, that there was no negligence on the defendants’ part, or in other words, there was no question of fact whatever to be submitted to the jury.

In this case, it is proof of negligence that the flagman was away, when he should have been at his post; and, the plaintiff hearing or seeing nothing of an approaching train, and seeing no flagman, had a right to proceed as he did. If his story was true, he was not *negligent;*at any rate, it was clearly a question for the jury. *(Johnson*v. *The Hudson River Railroad Co.,*20 *N. Y. Rep. 65.)*

There being no exception to the charge and the jury having passed upon the disputed questions of fact, there is nothing to warrant a reversal of the judgment, which should be affirmed.

By the Court,

Garvin, J.

To entitle the plaintiffs to recover they must show negligence on the part of the defendants and a want of negligence on the part of the plaintiffs. Concurrent negligence defeats the action.

These principles have been adjudicated so frequently, and are so well settled that it cannot be necessary to go over the cases, but it will be sufficient to cite them.

Upon the questions of the defendants’ negligence, there is no pretense but that the engineer was fully awake to his duty and in the most ample manner performed it, in running the engine at a low rate of speed, with the brakes on, reversing his engine, ringing the bell and blowing the whistle. ■ The two first retarded the train, and the two last were a warning to the plaintiffs and all others, that there was danger in crossing the railroad «track. The train could not be stopped, at the *354point of contact. The proof is that all was done that could he to stop the train, and that it was impossible. The engineer was also actuated by another motive besides that of duty; fear that contact with plaintiffs’ team would throw the locomotive from the track, and plunge the whole train off the drawbridge, which was only a short distance in advance. With these motives—safety for himself and passengers, duty-to his employers and the plaintiffs—it is not only probable but it is in proof that that all was .done that could be on the part of the defendants to avoid the collision. But it is said on the part of the plaintiffs that there was no flagman at the crossing, and this was negligence on the part of the defendants. It is conceded there was no flagman at the crossing. It must be conceded that none is required by law. So it must be conceded, on the evidence, that flagmen are solely and only' for guidance of those running the trains ; that flagmen are are not usually stationed at the crossings, but at dangerous places on the road; a white flag indicating the road to be clear, and a red flag a signal of danger—-that the train must stop. The great majority of road crossings have no flagmen. Flags are signals for the railroad men—nothing else. The want of a flagman at the crossing furnishes no evidence of negligence on the part of the defendants. It is not used for the public, but simply for the guidance of the engineer in case of an obstruction or other cause of danger, or that the road is clear. *We*must therefore hold, that upon the evidence, the proof was clear and undisputed that there was an entire want want of any negligence on the part of the defendants.

But we think, aside from this question in the case, the plaintiffs’ neglect contributed to the accident. This accident took place-in the day time ; the plaintiff saw the locomotive coming about 40 feet from him, and he was about the same distance from the track. He knew, therefore, the train was coming, and where the track was *;*all he had to do was to stop his horse and he and his property was safe. It is not apparent how he could have ventured any nearer to the track than he *355was, on discovery of the approaching train, unless he was guilty of the grossest negligence, or that his horse became unmanageable. One or the other must be true. Neither view of the case would entitle him to recover. Seeing the train when he himself was away forty feet from the railroad track, was actual notice the train was approaching ; so that with, or without a flagman, it was the plaintiffs' duty as a matter of ordinary care and prudence, to keep off the track. If he then recklessly drove on, he ought not to. recover; if he lost control of his horse, the defendants are not liable, and he cannot recover. The running of cars, at a high or low rate of speed is dangerous to the lives of the engineer and passengers, but it is sanctioned by law. It is also dangerous to persons crossing their track when the locomotive is in motion, near at hand ; but this does not make the use of locomotives or running trains of cars unlawful. It is well known that it is not possible to instantly stop a train of steam cars, propelled at an ordinary rate of speed, any more than if moving at an extraordinary rate of speed; yet it is perfectly legal to run trains of cars for the accommodation of passengers, and the carrying of freight. If one is injured in his person or property by a collision with engine or train, without proof of negligence on the part of the defendants, there can be no recovery. It is not enough to show an injury ; there must be proof of negligence, before there can be a recovery. There must also be an absence of negligence on the part of the plaintiff, to warrant a verdict in his' favor. These views bring us to a conclusion adverse to the plaintiffs. The judgment should be reversed, and a new trial' ordered, with costs to abide the event.