author:
      Johnson, J.
      Wright, J.

text:
    Joseph Garlinghouse v. Stephen B. Jacobs, and others, Commissioners of Highways of the town of Hume, in the county of Allegany.
    No duty attaches to commissioners of highways to repair roads and bridges until funds are provided for that purpose by the public.
    If commissioners are not fdrnished with sufficient funds, they are not hound to repair all- the bridges in the town. They owe no duty to any one to undertake more than the funds in their hands will complete and pay for; and they may exercise a discretion as to which of the bridges in the town they will undertake to repair.
    They will be presumed to have exercised that discretion in good faith, and cannot be made responsible, in a civil action, for its ex,ercise.
    Town commissioners of highways are in no event liable to a private action t for a mere neglect or omission to keep the highways of their towns in j repair. „

      Appeal from a judgment of the Supreme Court in the Eighth District.

    The action was brought to recover the damages caused by the breaking down of a highway bridge in the town of Hume, in the county of Allegany, of which town the defendants were at the time commissioners of highways. The plaintiff was the proprietor of a line of stages running through said town, and on the 4th of June, 1856, as his stage and two horses were crossing, the bridge fell and the carriage and the two horses were precipitated into the stream below, and injured to the amount of $150. The bridge at the time was apparently safe, but the stringers were rotten, and the bridge was at the time, and had been for some time previously, in a dangerous and unfit condition for use. One of the defendants had been notified of the unsoundness of the timbers, a year, or two previous to' the time of the accident. The bridge was situated at the foot of a descent in the highway, and the horses were driven upon it at a trot, but not in an improper or careless manner, if the bridge had been in the condition its appearance indicated. But the fast chiving did contribute materially to the injury, in the actual condition of the bridge. '
    At the time "of the accident, and for some time previous, the defendants, as commissioners, had in their hands a sufficient amount of funds applicable to the building and repair of bridges in said town to have repaired or re-built the bridge in question. But at the same time there were several other bridges in the same town, some of which needed repairing and others rebuilding, and the funds in the defendants hands were insufficient to repair and rebuild all the bridges in their town which needed repairing or rebuilding. Before the accident in question, the defendants had procured materials for the purpose of constructing such other bridges, the construction of which would have required more funds than the defendants had for such purposes. Immediately after the accident in question the defendants did use the funds in their hands to reconstruct the said bridge.. The action was referred, and tried before the referee, who found the foregoing facts, and held as a conclusion of law therefrom, that the defendants were not liable, and a judgment was entered in their favor. The plaintiff appealed to the general term, and the judgment was there affirmed, whereupon he brought his appeal to this court.

      John K. Porter, for the appellant.
    I. The facts found establish the negligence of the defendants,
    . 1. The statute charges the commissioners of highways in the several towns with “the care and superintendence of the highways and bridges therein,- and declares that “it shall be their duty,” among other things, “to cause the highways and bridges which are or may be erected over streams intersecting highways to be kept in repair,” (IB. S. 501, § 1.)

      2. The defendants permitted a rotten bridge to remain unrepaired, and neither of the three ever even examined it, though one of them had been long before notified of its dangerous condition.
    4. They had ample funds for the purpose, and did not apply them, only because they chose, at their own risk, to neglect the duty of examination.
    5. The fact that they had not funds enough to do all that might have been useful to the public, is no excuse for neglecting all, and leaving the funds unapplied; and especially for neglecting the only bridge in the town which the finding shows to have been in a dangerous condition.
    II. There was no negligence on the part of the plaintiff.
    1. It was the duty of the defendants to see that the bridge was safe; it was “ apparently safe;” they gave no warning to wayfarers of their danger, and are not at liberty to charge the injured party with presumptive notice of defects, which the commissioners' chose neither to make known nor to obviate,
    2. The act of the plaintiff doubtless contributed to the injury, but the act was neither culpable nor Unlawful.
    HI. The defendants are civilly liable to the plaintiff for the damages he has sustained through their neglect to perform a ministerial duty, imposed on them by law, and which they were paid for discharging.
    1. “It is the duty of commissioners of highways to repair bridges, in all cases where means are provided for that purpose. The commissioners, if they have the means, or have the power of being supplied with the means, to repair bridges in their town, and' neglect to use and exercise the same, are liable for any injury which may result from their neglect of duty.” (Smith v. Wright, 24 Barb. 170, Davies, J.)
    2. “When an individual sustains an injury by the misfeasance or non-feasance of a public officer, who acts or omits to act, contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case.” (Adsit v. Brady, 4 Hill, 632, Bronson, J.)
    3. “ Where a public body or officer is clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the statute creating it be only permissive in its terms.” (Mayor of New York v. Furze, 3 Hill, 612; Nelson, Ch. J.)
    4. “ Where a duty of a judicial nature is imposed upon a public body, the members of the body, it seems, are exempt from responsibility by civil action for the manner in which the duty is performed. But where a duty, purely ministerial, is violated or negligently performed by a public officer or body, an injured party may have redress by action.” (Rochester Lead Company v. City of Rochester, 3 Comst. 463.)
    5. “The corporation of the city of New York is bound to keep the streets and avenues' of that city, which are opened for public use, in such repair , that they may be safely traveled; and when they are negligently suffered to become and remain out of repair, the corporation is liable for injuries sustained by persons through such negligence. Where a public body is clothed by statute with power to do an act which the public interest requires to be done, and the means for the performance are placed at its disposal, the execution of the power may be insisted on as a duty, although the statute conferring it be only permissive in its terms.” (Hutson v. Mayor of New York, 5 Selden, 163; 2 R. S. 474, § 96, and concluding section.)
    6. In the case of Storrs v. The City of Utica, Comstock, J., after discussing the nature of the obligation, adds: “The principles suggested become plain propositions in the case of a municipal corporation, which owes to the' public the duty of keeping its streets in a safe condition for travel. That the duty exists,.is not denied; and the doctrine that persons receiving special injury from its non-observance can maintain an action therefor was examined by this court, and asserted in the recent case of Hickcock v. The Village of Plattsburgh” (17 N. Y. R. 108.)
    7. In the case of Wilson v. The Mayor of New York, Beardsley, J., says: “ Public officers of every grade and description may be impeached or indicted for official misconduct and corruption. To this there is no exception, from the highest to the lowest. But the civil remedy for misconduct in office is more restricted, and depends exclusively upon the nature of the duty which has been violated. When that is absolute, certain and imperative, and every ministerial duty is so, the delinquent officer is bound to make full redress to every person who has suffered by such delinquency.” (1 Denio, 599.)
    IY. There is no foundation for the claim, that public officers charged with this duty are not civilly liable, though a municipal corporation charged with the same duty would be civilly liable.
    1. In each case the duty is the same; in each it is imposed for the benefit of the public; in each the consequences of neglect are the same. (24 Barb. 170; 4 Hill, 632; 3 Hill, 612; 3 Comst. 464; 1 Denio, 599.)
    2. In the case of Henly v. The Mayor of Lyme (5 Bing. 91; affirmed 3 Barnwell & Ad. 77), Best, Ch. J., says: “ Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence is an injury to an individual, an action may be maintained against such public officer.” The instances of this are so numerous, that it would be a waste of time to refer to them. (15 Eng. Com. Law R. 383.)
    3. In the same case on error, Lord Tenterden said, in delivering the judgment of the King’s bench: “We think the obligation to repair the banks and sea-shores is one which concerns the public, in consequence of which an indictment might have been maintained against the plain . tiffs in error for their general default; from whence it fol - lows that an action on the case will lie against them for a direct and particular damage sustained by an individual, as in the ordinary, case of nuisance in a highway by a stranger digging a trench, &c., or by the act or default of a person bound to repair ratione tenures. An indictment may be sustained for the general injury to the public, and an action on the case for a special and particular injury to an individual.” (23 Eng. Com. Law E. 36.) The judgment should be reversed; and, as the facts are found, final judgment should be rendered in favor of the plaintiff for the damages ($150), with interest and costs.

      E. Peshine Smith, for the respondent.
    I. The doctrine that highway commissioners, with or without funds, are not liable to a civil action for an injury resulting from their neglect to repair, was finally established in this state by the decision of Hickok v. Trustees of Plattsburgh (16 N. Y. 161), reiterated in Conrad v. Trustees of Ithaca, reported at the same place, but decided a year subsequently.
    TT But if this were otherwise, the law is clear that commissioners of highways are liable only when they have funds adequate to make the necessary repairs. (People v. Adsit, 2 Hill, 619; Barker v. Loomis, 6 Hill, 463.)
    HI. If the funds at the command of the commissioners are insufficient for the repairing of all the bridges 'requiring repairs, and there was no specific appropriation by voté of the town to the building or repair of particular bridges, the selection is necessarily referred to the discretion of the commissioners, and for the exercise of that discretion, they cannot be made responsible in a civil action. (Bartlett v. Crozier, 17 John. 451, per Kent, Chancellor; Rochester White Lead Company v. City of Rochester, 3 Comst. 466.)
   Johnson, J.

It is provided by statute that commission ers of highways, in the several towns in this state, shall have the care and superintendence of the highways and bridges therein. And it is made their duty to give directions for the repairing of the roads and bridges within their respective towns, and also to cause the highways and the bridges which are or may be erected over streams intersecting highways to be kept in repair. (1 E. S. 501, § 1.) It is quite certain that the bridge in question had not been kept in repair, but was, at the time the accident happened, in an unsafe and dangerous condition. Nor had any directions been given, or other steps been taken, for the repairing of the same. But it would not necessarily follow from this that the defendants should be held liable for the injury in question, even should it be determined that an action lies against commissioners of highways, in favor of an "individual who has sustained damage by reason of a clear omission of duty on their part to cause such repairs to be made. That seems to be still an open question in ' this state, and it is wholly unnecessary to determine it in the present case.

It is well settled that the duty to make repairs does not attach until funds are provided for the purpose by the public, and that until they are in funds sufficient to make such repairs, a mandamus will not lie to compel the commissioners to make them, nor an indictment for omitting the performance of the duty, nor any action founded upon the breach of the fluty. (The People v. Commissioners of Highways of Hudson, &c. 7 Wend. 474; The People v. Adsit, and others, Commissioners of Highways, &c. 2 Hill, 619; Barker v. Loomis, 6 id. 463; Bartlett v. Crozier, 17 Johns. 451; Shepherd v. Lincoln, 17 Wend. 250.)

Upon the facts established in this case there has obviously been no neglect, or breach of duty, on the part of the defendants, to the public or to individuals in reference to this particular bridge. Although it is found that at the time the injury was occasioned, the defendants were, and for some time previously had been, in the possession of funds applicable to the repair of bridgés in the town, to an amount sufficient and more than sufficient to repair this bridge; yet it is also proved that there were several other bridges in the same town which then needed rebuilding and repairing, and that such funds were not sufficient to repair all in the town which needed repairing. It is further found that before the accident in question the defendants had procured materials for rebuilding bridges other than the one in question, which needed rebuilding, and the completion of which would have required' more funds than the defendants had. It thus appears clearly that the defendants, so far from neglecting their duties as commissioners, were proceeding at the time, in the discharge of' such duties, in rebuilding and repairing other bridges needing repairs, the repairs of which would absorb all' their funds. Hot having sufficient funds provided, they were not bound to repair the whole. They owed no duty to any one to undertake more than the funds in their hands would complete and pay for; and they necessarily had a discretion to exercise, as to which of the bridges in the town they would undertake to repair. This discretion, for aught that appears, they exercised in good faith. It is to be presumed that they did so. The fáct that the defendants, after the accident in question, actually used the funds* in their hands to rebuild this bridge, and suffered the others to go unrepaired, adds nothing to the strength of the plaintiff’s case. They had the right to change their plans when the greater necessity for this repair became so apparent, and the fact that they did so, raises no implicatian against them. They have therefore been guilty of no loches or breach of official duty, and the action cannot be maintained.

The judgment was right and should be affirmed.

Wright, J.

This case, although of minor importance to the immediate parties, is, in the principle involved in it, of great public importance.

In June, 1856, as the horses and wagon of the plaintiff were being driven across a bridge on the public highway-in the town of Hume, the bridge broke down and precipitated the horses and wagon into the stream below, injuring them in the sum of $150. The stringers of the bridge were rotten; and, although apparently safe, the bridge had been for a considerable period in a dangerous and unfit condition for use. Neither of the defendants, as commissioners, had made an examination of the bridge at any time, and one of thqm had' been informed a year or two previous that its timbers were not safe. At the time of the accident, and for several weeks previous thereto, the defendants had a sufficient amount of funds in their hands applicable to that purpose to have repaired or rebuilt the bridge, and did immediately afterwards rebuild it, with such funds; but at the same time there were other bridges in the town, some of which required repairing and some rebuilding. The defendants had not funds, or the means of obtaining them, sufficient in amount to repair or rebuild all of said bridges. Before the bridge fell they had procured materials for the purpose of constructing such other 'bridges, to complete which would have required more funds than the defendants had, or had the means of obtaining in their official capacity. Upon these facts the court below held that the plaintiff was not entitled to recover of the defendants for the damages sustained by him on account of the injury.

It was sought to make the defendants liable to the plaintiff for a neglect of official duty. They neglected or omitted to keep the bridge in question in repair, and because, by such neglect or omission, the plaintiff sustained an injury, it is claimed that he may have his action against them for the damages. If this be so, and town commissioners are liable in a civil action for injuries to individuals arising from defective highways in their town, the announcement of the doctrine will at least excite the public- surprise. From the organization of -the state government down to 1820, there was no known instance in the state of an attempt to enforce a civil remedy in respect of highways. In 1820 the case of Bartlett v. Crozier (17 John. R. 438), which was an action against an overseer of highway for neglecting to repair a bridge, was brought into the court for the. correction of errors, when that court unanimously decided that no civil action could be upheld for such neglect. Chancellor Kent, who delivered the opinion of the court, in a learned examination of the law, held that in no event was the overseer liable; and although the question was hot strictly before the court, expressed a decided opinion that the commissioners were not -liable to a private suit, whether having, funds in their hands to make repairs or not. ■ For aught that is known, that opinion has been acquiesced in, except in a single instance, up to the present attempt to make the defendants liable, although numerous injuries must have occurred from defective highways of the state during the last forty years. It is true that some judges have assumed that commissioners of highways are liable in a civil action, at the suit of the party injured, for neglect of the duty to make repairs, if they had the needful funds; but I know of but a single decision' to that effect. (Smith v. Wright, 24 Barb. 170.) I apprehend, therefore, atthis late day, with our highway acts in respect to the duties and obligations of town commissioners substantially unchanged, to hold such commissioners liable, in -a civil action, at the suit of an individual, for a mere omission to keep the highways of their town in repair, would work a change in the law adverse to the general understanding of the profession and the public for inore than half a century.

But if the question is to be agitated anew, in my judgment the reasoning of Chancellor Kent, in Bartlett v. Crozier, and of Judge Selden, in Weet v. The Trustees of the Village of Brockport (16 N. Y. 161), is conclusive against such a right of action. Chancellor Kent’s objection to such a suit was based upon a construction of our highway acts, and the argument against the right to be deduced from the English law on the subject of the liability of this class of officers. Speaking of the duty imposed by the statute upon town commissioners in respect to roads and bridges of the town, he says: “There is no certain, stable, absolute duty in the case. It is. not like the case of an individual bound by a private statute, or by a certain tenure, to keep a road or bridge in repair, nor like the case of turnpike companies. There the duty is perfect and binding at all times, and is founded on a valuable consideration. The roads and bridges must at all events be kept in repair, according to ordinary diligence. It is a condition of the grant. The duty is not casual or contingent, but inevitable. In the case, however, of these commissioners and overseers, the duty depends upon a train of circumstances; it is very indefinite, and is varied and regulated by their discretion. There is not that precision and certainty of duty that "ought to make them responsible to individuals to any extent, and for any damage. The law has not supplied them with the pecuniary means, or armed them with the coercive power requisite to meet and sustain such an enormous and dangerous responsibility. The argument to be drawn from the English law on the subject is very strong against the right of action. There are officers under the English law, equally as under ours, charged with repairing the roads and bridges; they have existed and been known from ancient times, and yet there is no case in the English books, nor any precedent under our colony government, of any such private action. This affords a very strong presumption that no such action will lie.” The chancellor rests his argument upon three grounds: 1st. The nature of the duty which the highway act imposes on the commissioners, It is not absolute and imperative. It is made dependent upon a train of circumstances. It is indefinite, and is varied and regulated by the discretion of the officers. 2d. They are pot supplied by the law with the pecuniary means, nor with the coercive power requisite to meet and sustain a responsibility to each and every person who may have occasion to use them, for an injury sustained, by the roads and bridges of their town being out of repair; and 3d. There is no precedent in the English law, nor under our colonial or state government, for sustaining any [such private action against officers charged with repairing the roads and bridges. And how just and satisfactory is his view of the question. These commissioners are officers to whom a duty-to the public is confided. The care and superintendence of the public roads and bridges are entrusted to them. Amongst other things the statute Charges them with the duty of keeping the roads and bridges of their town in repair. The imposition of this duty is for public purposes only, and is made dependent, by the law, upon a train of circumstances, over some of which, at least, they have no control. The duty is not to keep one but all the bridges of the town in repair, and not one more than another; and hence it is very indefinite, and is necessarily varied and regulated by the discretion of the officers. Whether this or that bridge requires reparation, or whether any funds that may happen.to be under their control are required for the repair of one bridge more than another, is necessarily left to the discretion and judgment of the commissioners. With the exception of the assessed highway labor, they are.wholly dependent on a vote of the town even for the means to work the roads, and' build or repair the bridges, which the law places under their care. If the town refuse to appropriate money for the. purpose, though all the bridges within its limits needed repairing, the commissioners’ hands are tied. They may know, or be notified that the bridges are out of repair, yet the law has not supplied them with the pecuniary means, or the power to coerce them, required for their reparation, much less to meet and sustain a responsibility to individuals for an omission to repair. A section of the highway act enumerates as one of the duties imposed on this board of public officers “to cause the highways and bridges which are or may be erected over streams intersecting highways, to be kept in repair.” But what of that? It is but parcel of' a general highway system for the public benefit. We must look at the entire act, and the system it establishes, to determine what the duty thus enjoined is,—its nature and extent. It will then be seen, as was said by Chancellor Kent, that “there is no certain, stable, absolute duty in the case.” There is not that precision and certainty of duty that should make them responsible in a civil action, for an omission to perform it. Of themselves, they are not supplied by the law, with the pecuniary means, or with the coercive power to obtain them, to make them to discharge the duty under all circumstances. It could, therefore, never have been intended by the legislature, and there is no precedent for it in otir own or the English law, to impose on officers charged with repairing the public roads and bridges, the enormous and burdensome responsibility of answering to any and every person who uses such roads or bridges, for any injury happening from an omission to keep them in repair. If the highway act really imposes this burden, it applies, not only to the bridges but the roads of the town, and any and all accidents occurring from bad roads or broken bridges would subject them to a private action. It will not do to say that they are thus liable, when they happen accidentally to have funds at command to make repairs and omit to make them, and are not liable when without them. This would be the establishment of an impracticable and fluctuating rule of liability, depending on circumstances not within their control, and which receives no countenance from the highway act. They are responsible to individuals, if at all, upon the theory of a neglect to perform a. ministerial duty, absolutely and imperatively imposed on them by law, and which they are paid for discharging, and not because they may happen to have means at their command at a particular juncture of.time, and neglect to use them.

Apart, however, from the highway laws of the state, and the peculiar nature of the duty imposed" thereby upon the officers charged with the care and superintendence of the public roads and bridges, the ground taken by Judge Sebeen in West v. Trustees of Brockport, and adopted by this court in Hickok v. Trustees of Plattsburgh (16 N. Y. R. 161), as a correct exposition of the law, is decisive of the question of the commissioners’ liability to a civil action for an injury resulting from their neglect to repair. His position is that the duty and obligations of these officers are to the publie alone; they receive no compensation from and owe no duty to any private individual; they act for the public in general, and are accountable to the public alone for their negligence. He distinguishes between a mere neglect of duty by public officers and an affirmative act by which sonle injury is done, and between officers fhat owe a duty to individuals from whom they receive a compensation for the performance of some specific service, and those whose obligations are to the public generally. In the for-" mer case, the officer is responsible" in a private action for neglect of duty; in the latter, the remedy is by indictment only. This distinction seems to "rest upon principle, and is sustained by authority. It would appear to be repugnant to principle, to hold that a public officer who owes no duty to individuals, and performs none especially for them, but acts for the public at large, should, for a mere neglect, without malice and not personal, be amenable to a civil action in favor of an injured party; and there is no reported adjudication, either in this state or in England that declares such a liability, except it may be the case of Adsit v. Brady (4 Hill, 630.) On the other hand, a contrary doctrine is held. In Law v. Cotton (1 Ld. Raym. 646), the action was against the postmaster general, who was sought to be made liable for the negligence of one of his subordinates, and it was held that the action would not lie. A principal objection taken to its maintenance by the court was, that the post-office “ was a matter founded in government,” and that the postmaster general received no premium or compensation for his services from the plaintiff. This was in 1699. In 1778, the same question was again presented.in the case of Whitfield v. Lord Le Despencer (Cowp. 754), and the decision in Law v. Cotton fully sustained. In Brooke’s Abridgment, title “Action on the Case,” it is said, upon the authority of the year books, that if a highway be out of repair so that a horse Was mired and injured, “ no actionlies bythe owner against him who ought to repair it, for it is a public matter, and ought to be reformed by presentment;” and in Russell v. The Men of Devon (2 Term R. 667), which was a civil action against the inhabitants of a county for an injury sustained in consequence of a county bridge being out of repair, Ashuest, J., after stating another reason why the action could not be maintained, added; “But I‘think the case cited from Brooke’s Abridgment is a direct authority to show that no such action can be maintained; and the reason of that case is a good one, namely, because the action must be brought by the parties.” There are other cases to the same effect; and, for example, that of Young v. Commissioners of Roads (2 Nott & McCord, 537), which is an adjudication upon the precise question. That was an action brought against the commissioners of roads for an injury to the plaintiff’s horse and wagon from the insufficiency of a bridge, which, it was alleged, they were bound to repair. The plaintiff had a judgment, and upon granting a new trial, the court said:- “ Where an officer has been appointed to act, not for the public in general, but for individuals in particular, and from each individual, receives an equivalent for the services rendered him, he may be responsible in a private action for a neglect of duty; but where the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution.” In the case of Adsit v. Brady (4 Hill, 630), Judge Bronson lays down the broad proposition, that, “when an individual sustains an injury by the misfeasance or non-feasance of a public officer, who acts or omits' to act ■ contrary to duty, the law gives redress to the injured party by an action adapted to the nature of the case;” but there is no reported English or American authority that justifies so broad a rule of liability of a public officer. There is no case where the duty of the officer was one done to the public at large, and not to any individual, either specially or for fee or reward paid by him; the officer has been made accountable in a private action for a mere neglect of duty; and the fact that no such action has been brought or sustained, either in England or this state for a century and a half, except the single case of Adsit v. Brady, affords a strong presumption that no such action will lie.

I am of the opinion, therefore, that town commissioners of highways are, in no event, liable to a private action for a mere neglect or omission to keep the highways of their towns in repair. If this were not so, however, and the law is, as has been assumed on one or two occasions by judges, that their liability depends on their having funds to make repairs, the facts of this case furnish no ground for a recovery against the defendants. It can only be claimed that they are liable for a neglect to keep the roads and bridges of their town in repair—in the event of.their having funds adequate to make the necessary repairs. If the funds at the command of the commissioners are insufficient for repairing all the bridges requiring repairs, the selection is necessarily referred to the discretion -of the commissioners, and for the exercise of that discretion they cannot’be made responsible in a civil action. In this case the defendants, at the time the bridge broke, had in their hands funds sufficient in amount to have repaired or rebuilt the particular bridge; but at the same time there were other bridges in the town, some of which required repairing and some rebuilding, and they had not the funds, or the means of obtaining them, to repair and rebuild all of said bridges. Before the accident, the defendants had procured materials for constructing such other bridges to complete which would have required more funds than they had the means of obtaining in their official capacity. ' Thus there were several bridges of the town which needed repairing or rebuilding at the time of the accident; and referring to the uncontradicted evidence in explanation of the finding of the referee, all the money that the commissioners received from the cellector that year applicable to the repairs of roads and bridges was $220—of which sum they had expended $118 in April before the accident. They had, also, before the bridge in question fell, procured $100 worth of timber, and contracted for iron costing $97, intended for repairing or rebuilding other bridges. The entire fund, therefore, for the year at the command of the defendants was $220; there were a number of bridges in their town which required repairing or rebuilding besides the one that broke down; their funds were insufficient to repair or rebuild all of them; they selected bridges to repair in their judgment more insecure and dangerous than the one that fell, procuring materials for the purpose, but had not funds at their command sufficient to complete- such repairs, although enough at the time of the accident to repair the bridge causing it. With funds inadequate to malte the' necessary repairs to all the bridges requiring them, the defendants, selected those which, in their judgment, most needed repairing. The commissioners have discretion to expend the means at their command upon all or either of the roads or bridges that they shall deem best, and for the exercise of this discretion they cannot be made accountable in a civil action.

I think the judgment of the supreme court should be affirmed.

Mullin and Hoqeboom, JJ., were for affirmance on the grounds stated in Judge Johnson’s opinion, without dissenting from Judge Wright’s views on the other point. Denio, Ch. J., was for affirmance on both points. Ingraham, J., was for affirmance, on the grounds that the defendants, as commissioners of highways, were not liable in a civil action for negligence, and that, it appearing that they had not sufficient funds to repair all the bridges, and. had appropriated the funds they had to the repairing of other 'bridges, they were not liable in this action, for the want of the necessary funds to repair.

Davies, J., was for reversal, and Selden, J., having been counsel, took no part in the decision. Judgment affirmed.


source: Caselaw Access Project

author: Denio, Ch. J. Hogeboom, J.

license: Public Domain

text:
    Christina Wilds, Administrator, &c., v. The Hudson River Railroad Company.
    A railroad company having the general right to lay a track, and run then-engines and cars across a public street in a city, they must he shown to have committed some fault in the manner of doing it, before they can be made liable for a personal injury sustained by an individual.
    It is not enough to point to the injury which ensued, and show that it was attributable to the running of the train across the street; but it must be shown that there was something improper in the manner of running the train, before the company can he made responsible for the consequences.
    The law not having fixed the rate of speed at which cars may be run upon a railroad, in and across the streets of a city, it is generally a question • of fact, in each case, whether the actual rate was excessive or dangerous. Whether it is so or not will depend, to some extent, upon the safeguards which are adopted to prevent accidents.
    It is not correct to say that in every case where a fault in this respect is alleged, the question must be submitted to the jury. If- it be clearly shown that on the occasion in question the velocity was not greater than that which had been usually practiced before, with the tacit consent of the coinmnnity and without accident, it should not be considered an open question whether running at that rate was negligent and unlawful.
    What degree of care and prudence should be observed by persons driving teams across railroad tracks in cities.
    If the case is such as to require the person wishing to cross a railroad, to come near the track to make his observation, that circumstance, so far from excusing him from the duty of looking at all to see whether a train is approaching, would only render that duty more imperative, if he would avoid the imputation of negligence.
    If one, about to drive his team "across a railroad track, sees a train approaching, and determines to try the speed of his horses against that of the engine, he does it at his peril.
    So if he heedlessly drives upon the track without concerning himself to ascertain by observation that it can be done safely.
    Where W. drove his horses upon a railroad, where it crossed a street, without giving any heed to the signals made, or to the track, until he came very near it, and then, seeing a train approaching, he attempted to cross the track in front of the engine, whipping his horses for that purpose, which became restive and uncontrollable, and a collision ensued, by-which W. was killed; Held, that no action would lie by his administratrix against the railroad company.

      Appeal from the Supreme Court.

    The action was brought to recover for. the death of the plaintiff’s intestate, who was- her husband, caused by the alleged negligence of the defendant’s servants. On a former trial the plaintiff had a verdict , but the judgment was reversed by this court and a new trial ordered . The second trial was had before Mr. Justice Hogeboom, who non-suited the plaintiff. That judgment having been affirmed at a general term", the plaintiff brings this appeal. The leading facts are referred to in the opinion.

      John K. Porter, for the appellant.
    I. The decision on the former appeal furnishes no autho rity for taking the case from the jury, on the questions of fact presented by the additional proof on the new trial. (24;N. Y. R 430.)
    II. There was a plain'question of fact for the jury on the defendant’s negligence.
    1. The usual speed of the train at that crossing was “ five or six miles per hour.” If the jury believed the evidence of Williams, the street inspector, and O’Laughlin, confirmed by that of Carrol, Gillespie and conductor Squires, they were authorized to find that the train was running at noon day across the streets of a populous city at the rate of twenty miles an hour; and that was' negligence.
    2. If the jury believed the evidence of the engineer, that there was but; a single brakeman, and' that the brakes of the rear car were neither manned nor applied, they were authorized to find that the" brakes were not well manned; and that was negligence.
    3. If the jury believed the testimony of the conductor ‘and fireman, that they were charged with the duty of looking ahead for danger—that the view of this crossing was open and unobstructed from the hospital down, and that neither of them saw the team until the engine was within from thirty to fifty feet of it, they were authorized to find that there was gross negligence.
    m.'The question, on the proof given at the last trial, whether the plaintiff was guilty of negligence, was one plainly of fact for the jury.
    IY. Negligence, when it is to be deduced from a variety of facts as to which the evidence is conflicting, is peculiarly a question of fact for a jury.
    1.' What is reasonable and ordinary care, in a sudden exigency of peril like this, is a mixed question, depending on a variety of circumstances—the situation of the party, his opportunities for observation, his control of his horses and vehicle, the notice of danger, the velocity of its approach, the time for decision, the means and space for escape, the noise and confusion, the excitement of an unlooked-for peril, and the tumult of all the faculties in sudden view of instant death; and on such an issue, all men instinctively feel that one is entitled to the verdict of Ms equals. Ad questionem facti non respondent judiees — ad questionem legis non respondent juratores.

      2. The policy of the law is, to require unanimity on a question of fact, which is not demanded on a question of law. Thus in this case, even as it stood before, Judges Hogeboom and Peckham concurred with the jury on the .questions of fact. Three members of this court concurred with Judge Gould, in holding that the verdict was against the weight of the evidence. Thus a question of fact is determined by a divided court; and the defendant claims that the fact should finally be thus determined.
    3. Thus in the kindred case of a collision by a city horse car, the present chief judge, in delivering the unanimous, opinion of the court, referred to the fact that “one of the plaintiffs’ witnesses thought it was passing at the rate of eight or ten miles, an hour,” and said: “We must assume that the car was being driven at an immoderate and unsafe rate upon this crowded thoroughfare. This is important to be remembered, while we are endeavoring to ascertain whether the plaintiff was culpable or not.” After stating the general rights of the railroad proprietors, he» adds: “But they have no right to drive immoderately, and it is in the highest degree dangerous for them to do so. Still,' if they offend in that respect, and the driver of a common carriage will negligently or wilfully place himself or remain in their path, he has no right to claim damages. It is not, however, unreasonable for the traveller to assume that the railroad car will be driven moderately and prudently. He can calculate distances, and the time requiredzto .effect his own change of position, in order to prevent injury in such cases. But if he encounters a car driven furiously through a crowded street, and makes a mistake as to time in attempting to get out of- the way, culpable negligence is not necessarily to be imputed to him. This was the plaintiff’s case. He had turned his cart at a right angle with the track, and was driving off, but the cart was hit within about six inches of its hinder end. A few seconds more would have placed him out of danger. The defendant was clearly in the wrong. Whether the plaintiff was also in the wrong, by unreasonably delaying to turn out, was a question for the jury. It may be that this collision resulted wholly from the defendant’s rapid driving. We cannot pronounce as matter of law, that the plaintiff was guilty of negligence in not turning out earlier.” (Hagan v. Eighth Av. R. R. Co., 15 N. Y. R. 383, Denio, Ch. J.)
    4. In Keller v. N. Y. Central R. R. Co., Mason, J., in delivering the opinion of this court, after citing this exposition of the rule, 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 constituted, the inference from a 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.judge to decide; but when the facts, or the inference 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 Howard, 177.)
    5. In that case Judge Ingraham said, in delivering the opinion of the supreme court: “Whether or not, under these circumstances, he was guilty of negligence, would depend upon what notice he had of the approach of the engine. A witness who was near him at the time, testifies that he did not hear the bell ring: and if a person standing there could not hear it, it is not unreasonable to suppose the deceased did not. Ho man, unless for the purpose of self-destruction, will voluntarily place himself where his life may be taken away; and in this case, it seems to .me the facts proven, with the doubt as to the deceased being within hearing of the bell of the engine, if it was rung, would make it proper and necessary to submit the question of the intestate’s negligence to the jury.” (32 Barb. 168.)
    6. In the case of Fero v. Buffalo & State Line R. R. Co., this court said: “ It is very possible that, by unusual precaution and watchfulness on the part of the plaintiff, the consequences of the defendant’s wrong might have been less disastrous; yet, if he was guilty of no' culpable negligence, the mere fact that he might have been more vigilant, 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. 215, 216.)
    7. For this purpose “ ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation.” (Lynch v. Nurdin, 41 Eng. Com. Law, 425, Ld. Denman, Ch. J.)
    8. “ There must be some wrongful act or culpable negligence on the part of the plaintiff to. bar him on this principle.” (Cook v. Champlain Transp. Co., 1 Denio, 100, Beardsley, Ch. J.)
    9. “It is sufficient, if he were placed- by the misconduct. of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was occasioned by the fault of the defendant, the action may be supported.” (Stokes v. Saltonstall, 13 Peters, 193; Jones v. Boyce, 2 Eng. Com. Law, 483, Ld. Ellenborough, Ch. J.)

      John H. Reynolds, for the respondent.
    I. The decision of this court, in this case, on the former appeal, disposes of every material question which can pro-' perly arise on the present argument. It was held, after due consideration upon substantially the same facts, that the plaintiff ought to be non-suited for want of evidence to show that the defendant was guilty of any negligence, and because the evidence did show that the want of care, or negligence of the plaintiff’s intestate, contributed to the injury. (Wilds v. Hudson River Railroad Co., 24 N. Y. R. 430.)
    H. The only additional evidence which can be claimed to bear upon the question of the negligence of the defendant is that of Squires, who gave an opinioñ in respect to the facility with which a train of cars could be stopped by the reversal of the engine and the application of the brakes.
    ITT. The plaintiff was properly non-suited, for the reason that the evidence clearly and unquestionably established the fact that the injury to Wilds was caused by his own negligence, inattention, or want of care; and such is the decision of this court.
    I. The plaintiff’s intestate was, at least, bound to exercise ordinary care' in approaching this crossing. It may Tbe assumed that he was neither deaf nor blind, and had the ordinary reasoning faculties and instincts common to mankind. If with these faculties, properly and carefully applied, he could have escaped the danger, he was guilty of negligence if he did not escape it. The fact that he drove on when he ought to stop, and turned his horses to the left when he should have turned them to the right, even if it shows a confusion of mind, just as clearly proves want of care:
    2. Wilds was driving a smart team, with a light wagon, in open day, along a wide, level and unobstructed street, and approaching a public well known railroad crossing. At a distance of twenty-five feet south of the south railroad track, sitting on his wagon in the centre of Fourth street, he could have seen the train coming six hundred and fifty feet off. The bell rang and the whistle sounded, and this warning was heard by every person at the crossing. A flagman stood in the centre of the street waving a white flag. Men and women hallooed to him to stop, and one or more attempted to stop his horses by seizing them by the head. Wilds, however, kept on, apparently heeding no warning. He heard and saw the train coming before, or just as he was getting on to the south track. He turned his head and looked up, and raised his whip to strike the horses. If he had stood still he would have escaped. He did, in every particular, what he ought not to have done, and what no prudent man would do. He came up to the crossing on a trot. Before he got on to the track, seeing the engine almost at the crossing, instead of stopping where he was, he chose to take the risk of the attempt to cross the track in front of the locomotive, and for this purpose goaded his reluctant horses with the whip. It was either a rash and reckless act, or it was the act of folly, or inattention, or lack of common sense. Under all the circumstances, it cannot be said but that the commonest care and attention on the part of Wilds would have avoided the injury.
    3. It is "but common ordinary care for a traveler on the highway to approach a railroad crossing with caution. He must listen and look for the train. This is not a rigid requirement. It is simple and easy, and its omission is in all cases want of ordinary care. If a jury will not so find, the court should, or a railroad corporation can have no protection. It is idle to ring the engine bell or blow the whistle if travelers may pay no attention to the warning. There is no need of a flagman at a crossing, if travelers may drive over him and yet be guilty of no want of care. It is mockery to require a railroad company to sound all their warnings, and when they are all given, to hold them responsible because a traveler has either recklessly or stupidly disregarded them, and lost his life. (O’Brien v. Philadelphia, &c., Railroad Co. 6 Am. Law Reg. 361; Cotton v. Wood, 98 Eng. C. L. 566; Gahagan v. Boston & Lowell Railroad Co. 1 Gray, 187; Fox v. The Town of Glastenbury, 29 Conn. 204.)
    4. If Wilds did not hear the warning of the train’s approach, it was because of his inattention, and that was negligence. If he did hear it and still pressed on, that was worse negligence still. If he did not look for the train before getting on to the track, when by looking he might have seen it, that was negligence. If he looked, and saw the train coming, and pressed on, hoping to cross before the engine, that was criminal recklessness. If by inattention to the warnings around him he pressed on, to a point where the danger seemed so imminent that he lost his presence of mind, the company ought not to be responsible for his folly or weakness. If he did not ■ hear the whistle, it is clear that he could and ought to have heard it, because it was heard by every other person at the crossing. He must have seen the flagman, because he stood in the center of the road in plain sight. Even if he was engaged in keeping a woman off the track, he was still visible to the naked eye, and the least attention would have discovered him; and the delay of half a minute would have ensured perfect safety. Even checking the speed of his horses, instead of goading them on, would have preserved him unharmed.
    5. Wilds heard the whistle of the train Before he got on to the south track. Instead-then of stopping, he whipped his horses on. He came driving up to the track “on a smart trot.” O’Brien shouted' to him three times to stop, and made an effort to catch the horses and stop them. Wilds, however, whipped them up. “ The flagman went and held the flag before the horses.” He still whipped them on, although he saw the train coming and very near him. Under the circumstances of this case, no jury.would be authorized to find that the injury was occasioned “ solely by the negligence of the defendant,” and they could have no legal right to “be satisfied that the plaintiff’s intestate did not, by any negligence of his own, contribute to the injury,’" and it was the right and duty of the court to non-suit the plaintiff. (Johnson v. The Hudson River Railroad Co. 20 N. Y. 73; Dascomb v. Buffalo and State Line Railroad Co. 27 Barbour, 221; Brooks v. Buffalo & N. F. R. R. Co. 25 Barbour, 600; Cotton v. Wood, 98 Eng. C. L. [8 Com. Bench], 566; Toomey v. The London, Brighton, &c., R. R. Co. 91 Eng. C. L. [3 Com. Bench], 146; Gahagan v. The Boston & Lowell Railroad Co. 1 Gray, 187; Fox v. The Town of Glastenbury, 29 Conn. R. 204; Wilds v. The Hudson River Railroad Co. 24 N. Y. 430.)
    6. There was no additional evidence given by the plaintiff on the second trial, which affects the rule to be applied to it under the decision of this court, or required the circuit judge to submit the case to the jury.
    7. Martin O’Laughlin says he did not remember of hearing the bell or whistle, nor hear Mrs. Banker call out to Wilds to stop, or see O’Brien or Orr, for the obvious reason that he paid no attention at all. He did, however, see the flagman on the east track as Wilds approached, with a flag in his hands, engaged in keeping a woman and child off the track, and saw Wilds drive his horses on or against him. He saw Wilds whip his horses, and says he drove across the track' at the rate of fifteen or sixteen miles an hour.
    8. This evidence does not tend to disprove the fact that the bell was rung and whistle sounded, or that Mrs. Banker did call out to Wilds. But-it does tend to confirm the fact that the flagman was at his post, and that Wilds must have seen him, and that he drove on to him and the track at a reckless rate of speed. He therefore makes more clear the fact that Wilds had every means of avoiding the danger, and recklessly disregarded them.

        .) See 33 Barb. 508, S. C.

      .) See 24 N. Y. Rep. 430.

   Denio, Ch. J.

Two generakquestions were litigated in this case—whether the defendants were shown to have been ■ guilty of negligence, and if they were, whether the conduct of the plaintiff’s intestate, on the occasion of the injury, was also negligent in a degree which contributed to produce the fatal result. If the second position is established, it is too well settled to need a reference to authority that the plaintiff cannot recover. The collision occurred in the city of Troy, where the defendant’s railroad crosses -Fourth street upon the same grade with the street. Such arrrange ment of thoroughfares renders the travel, at the point where the railroad and the street coincide, especially in a large town, unusually hazardous, and they call for a high degree 5f caution both on the part of the managers of the railroad and of individuals, who, in using the street, have occasion to cross its track; and it may well be doubted whether, as a question of policy, they ought to be permitted by public authority. ■ They are, however, tolerated by law, and our duty, in the cases which are brought before us, is to determine, in view of the nature -of the. subject, and of the special' facts presented, upon whom the culpability in the particular instance rests.. The defendants having the general right in this case to run their engines and car» across the street, they must be shown to have commit ted some fault in the manner of doing it. It is not enough to point to the deplorable result which ensued, and show that it was attributable to the running of the train across the street, but it must be shown that there was something improper in the manner of running the train, before the defendants can be made responsible for the consequences. It is suggested that the train was out of time, and the proof certainly is that the regular time for starting was about eleven o’clock in the forenoon, and the collision'is admitted to have occurred about noon, and the distance that had been ran would have required but a few minutes. But it is in proof that between thirty and forty trains pass over the road each day. However perfect the arrangements of a railroad management maybe, they cannot, of course, be entirely independent of accidental circumstances, which may prescribe the period of setting out and arriving. Ho person can reckon with any sort of safety upon the point of time when a train will pass over a particular place; and where the trains are so numerous as on this • road, it would be impracticable for a traveler on an intersecting street to protect himself by learning the times of arrival and departure of the several trains, and there is no pretence that anything of the kind was attempted by the deceased in the present instance. Ho one can be secure against being met by an engine except by ascertaining by his own senses that no train is approaching in either direction within a-distance which will endanger his safety. There is no ground for attributing any negligence to the defendants in respect to the flagman. I will assume that it was their duty to place a person at the point of intersection to warn persons against crossing when trains were approaching; and this was done in the present instance. The evidence is clear beyond contradiction, that such a person was stationed between the two tracks with a flag, when the train and the deceased were approaching the spot where the collision happened. That he did his whole duty by displaying his flag and warning passengers off by remaining as long as he possibly could, consistently with his own safety, is sufficiently apparent from the evidence, and from the fact of .his being knoóked down by the horse of the deceased and his barely escaping being run over by the engine, But the allegation of negligence principally relied , on is that the train was being ran at an unusual and dangerous rate of speed, This involves the question, in the first place, as to the rapidity at which the train may be run in a city where the intersecting streets are upon the same level. As the law has not fixed the speed at which they may be run, it is generally a question of fact in each case whether the actual rate was excessive or dangerous. Whether it is so or not, will depend, to some extent, upon the safeguards which are adopted to prevent accidents, It is not .correct to say that in every case where a fault in this respect is alleged, the question must be submitted to the, jury. If it be clearly shown, that on the occasion in question the velocity was not greater than that which had been usually practiced for a considerable period, with the tacit consent of the community and without accident, it should not be considered an open question whether running at that rate was negligent and unlawful.

The other question, as to the actual speed at which the train was run, is yet more difficult. The persons concerned in the management^ of the train, as engineers, conductor, firemen, and the like, have the best opportunity of judging, on account of their situation, the nature of their duties, and the experience which their employment must give them. But they are subject to a natural bias in favor of a determination which shall- exempt them from censure. A passenger, if his attention is attracted to the subject at the proper time, has some advantages over a bystander, and the latter is legally competent to speak upon the question, but his evidence is entitled to but little weight, unless some special circumstance led him to think of the question at the time the transit was taking place; nor then, unless he had been in the habit of observing the passing of trains and estimating "their speed. In- this case the servants of the defendant,, five in number, unite substantially in declaring that the speed did not exceed that which was usual, namely, about five or six miles per hour. On the other hand, a passenger, who thinks his attention was at the time directed to the subject, and three other of the plaintiff’s witnesses who were standing in the street, testify more or less strongly that the running was unreasonably and unnecessarily rapid, and reaching, according to some of them, to twenty miles an hour. Some criticisms may ‘be justly applicable to one or more of these witnesses, but I think there was a sufficient conflict of evidence to render it improper to take the question from the jury, if the determination of the case depended upon it- I am far,- however, from 'saying that, as a juryman, I should have found, as the just result of the whole evidence, that the allegation of negligence in this respect was established. The great danger of immoderate running in such a locality, whatever collateral safeguards may be provided, should admonish the governing authority of these companies to take extraordinary care—not only that it should not be indulged in, but that unimpeachable evidence .should be at hand to demonstrate—that excess in this respect had never occurred.

Upon the other general question, I am of opinion that the uncontradicted evidence was such as not-to present anything for the jury to deliberate upon. If one will heedlessly or rashly drive upon the track of a railroad where trains are constantly or frequently passing, without taking pains to ascertain whether one is actually approaching or not, it will strike every one intuitively that he is running a great and unnecessary risk. A crossing can rarely, if ever, be so situated as to render it impossible or difficult for a traveler to observe the track on each side for a sufficient distance to determine whether it is safe to proceed. If such localities exist, they should not be crossed at all; and it would be equally imprudent in the company to tolerate them, and in the passenger to use the crossing. If the case is such as to require the person wishing to cross to come near the track to make his observation, that cir cumstance, so far from excusing him from the duty of looking at all, would only render that duty more imperative, if he would avoid the imputation of negligence. Tho evidence in this case shows that the track, of the railroad, east of the Fourth street crossing, was upon a straight course for the'' distance of at least six hundred and fifty feet from that crossing. Although there were buildings on the east side of Fourth street, yet the whole distance I have mentioned could be seen by a person approaching, as the deceased did, on Fourth street, from the south, before entering upon' the track. If the train had been beyond the range of his vision, when he came near the crossing, there would have been ample time for him to drive leisurely across both tracks, which were, together, including the space between them, only seventeen feet wide. But if he saw the train coming towards the crossing, and determined to try the speed of his horses against that of the approaching engine, he did it, I think, at his peril. And the case would be the same if he heedlessly drove upon it without concerning himself to ascertain that it could be safely done. That he had an opportunity to see the train, if he had looked, in -time quite sufficient to avoid all danger, either by stopping or by turning to the sidewalk, is certain, upon the testimony of every witness who has spoken on the subject. That he did in fact see it at some time before the collision is evident from the testimony of all the wit-, nesses to the principal fact; for they swear that he whipped his horses in order to get across before the engine should reach him. It may be, as one of the plaintiff's witnesses testified, that when this took place he had advanced too far to stop or turn. But I can perceive no possible reason why he did not, when sufficiently near to observe the track in the direction from which the train was approaching, use that natural and indispensable precaution. I have thus far omitted any mention of the other warnings that were shown to have been given. There was no material contradiction of the evidence showing that the whistle was sounded and the bell rung in sufficient season to warn any person who was at or near the Fourth street crossing. It was sworn to by seven witnesses, embracing the defendants’ servants on • the cars, and other persons who were at Fourth street. It did not raise any question for the jury for two or three other persons to swear that they did not hear, or did not remember to have heard these signals until immediately after the collision. It is matter of common observation that persons who are habitually in a situation to hear the passing of railroad trains fail to notice the noises which accompany them. If a jury could be permitted to find, against the 'evidence which was given in this case, that these warnings were not given until it was too late for them to be useful, there could be no longer any truth in human testimony. The evidence of personal warning to the deceased was very strong, and was substantially uncontradicted. The flagman heard the whistle and bell, and after so hearing them he went from his flag-house, got his flag and stationed himself on the track at the crossing and waved the flag. At that time there was no person crossing the track, though there were teams on the south side of the railroad which were stopped. A woman with a child attempted to cross from the other side, and while he was engaged in keeping her off he was struck by the team and knocked down and barely escaped from being run over by the engine. A Mrs. Banker lived in a house at the northeast corner formed by the intersection of the railroad with Fourth street, and was at the time sitting at a window in the second story fronting the track. According to her testimony she heard the whistle and bell and looked out before the cars came, and then saw the deceased approaching on a fast trot, and hallooed to him twice to stop. He looked around, raised his whip and struck his horses. She saw the flagman hold his flag and saw, him knocked down, and his flag fall. She is supposed to be contradicted by Martin O’Laughlin, one of the plaintiff’s witnesses who swore he was standing on the threshold of the front door of the same house. This would be some evidence that her exclamation was not sufficiently loud to be heard in the street, but it does not1 draw in question the fact that she saw the deceased approaching towards apparent danger before the cars were in sight, and when it was in time for him to have stopped his horses. Two other witnesses for the defendants, Orr and O’Brien, testified that they were standing in Fourth street, on the south side of the railroad, and about three feet from the track. Orr said O’Brien shouted to the deceased three times, and they united in saying that O’Brien stepped forward to grasp the horses. Witnesses were examined as to the character of both these persons, and their testimony was unfavorable to their character. In examining a judgment of non-suit we can only, rely upon evidence which is substantially uncontradicted and unimpeached, and I have therefore formed my conclusion in' this case from the evidence other than that given by Orr and O’Brien. Laying aside their testimony, I find it established beyond contradiction that the deceased drove, his horses on to the defendant’s road, without giving any attention to the track, with a view to see whether a train was approaching, when such attention as a man having ordinary discretion and prudence would have bestowed, would have disclosed the advance of the train and would have effectually preserved, him from danger. The truth plainly was that he gave no heed to the railroad before him until he came very near it, and then chose to try the experiment of endeavoring to cross it in front of the engine, for that purpose applying the whip to. his horses. But they became restive and uucontrollable, partially stopped upon the track, and the wagon was hit, and the deceased was fatally injured. Several such cases have come into the courts. In Spencer v. The Utica & Schenectady Railroad Co. (5 Barb. 337), the person injured, who was the driver of the wagon, was in a condition to see the train, and either suffered his attention to be directed'to another object, so as not to observe it, oi* seeing it, thought he could drive across the track before it would strike him, and erred in his reckoning. He miscalculated and was struck. The court set aside the report of referees in his favor, though the judges admitted that negligence on the part of the defendant was established. In Steves v. The Oswego and Syracuse Railroad Co., in this court (18 N. Y. R. 422), there was sufficient evidence in the view of a majority of the judges to submit the question of the negligence of the defendants to the jury, and yet a non-suit was sustained on the ground that the plaintiff drove on to the track without looking up and down to see if a train was approaching, it being evident that such observation would have disclosed the advance of the train. The same principle was affirmed when the present case was before this court on a former occasion. The plaintiff gave some additional evidence on the second trial, but it was not of a character to change the opinion which I then formed upon this point of the case.

I am in favor of affirming the judgment of the supreme court.

All the judges concurred excent Hogeboom, J.

Hogeboom, J.

I do not see that the reversal by this court of the former judgment in this case settled any prin ciples cf law, which are in any way decisive of the present appeal Five judges concurred in the judgment of reversal. Judge Gould wrote an opinion for reversal, from which it would appear that the trial (not the transaction), was a tragedy of errors. Judges Davies and Smith are stated to have concurred—perhaps in the opinion, perhaps in the result. Judges Dentó and Allen were also for reversal—the latter on the ground of the plaintiff’s negligence. Judge Sutherland wrote a dissenting opinion. Judges Selden and Wright were absent. I conclude that a majority of the judges did not express their concurrence in the views — certainly not in all of them — advanced by the learned judge who penned the leading opinion. I regard the case as open to the application of the principles which have been heretofore supposed pertinent to cases of this description; at all events as open to the consideration of the question, whether the facts, or the evidence of the facts, was so far varied on the trial now under review as to require the submission of those facts or that evidence to the jury.

There being no doubt that Wilds’ death was occasioned by the defendants’ locomotive engine, the two leading questions arose, as in nearly all eases of similar casualties. 1. Was such death occasioned by the defendant’s negligence; and if so, 2. Did Wilds’ own negligence, in part, contribute to the fatal result?

The particular aspect in which those questions were presented tin this trial was: Was there sufficient evidence to go to the jury on these questions? If so, as the judge refused to submit the same to the jury, notwithstanding a request to that effect, there should be a new trial granted.

1. Was there evidence sufficient to go to the jury on the question of the negligence of the defendant’s agents and servants? The principal facts relied upon for this purpose, in the present case, I understand to be four. 1st. The excessive speed of the-train. 2d. The failure to wave a flag at the crossing. 3d. The want of a.sufficient number of brakemen on the train. 4th. The failure on the part of the officers and men managing the train to discover the danger in season to have prevented the accident.

Without reciting the evidence in detail, on all these points, I am of opinion, as I was on both of these trials at which 1 presided, that there was sufficient evidence to submit to the jury on the two leading points, to wit: Whether the defendants kept up a proper look out, and whether the rate of speed was not excessive and dangerous. On the first of these propositions there was much and I think preponderating evidence that the defendant’s agents might, with proper watchfulness, have observed the danger at a much farther point from the point of collision than they did; and if so, the casualty would not probably have occurred. The crossing was in view for a considerable distance, and yet both the engineer and the fireman swear that they did not observe the deceased or his team until they were nearly upon them.

Upon the other point—the speed of the train—the evidence was conflicting, and such as, I think, would have required its submission to the jury, if that were the controlling point in the case. Two witnesses sworn on both trials for the plaintiff, Carroll and Gillespie, say, the one that the train was coming fast, which was not usual there, and the other that they were running very rapidly. Two other witnesses, O’Laughlin and Williams, not sworn on the first trial, testified on the second, the one that the train was running as fast as twenty miles an hour, the other between twenty and twenty-five miles an hour. There were other witnesses whose testimony tended to show a rapid rate of speed.. Some five witnesses for the defendant testified in substance to their opinion that the train was running the usual speed—some five or six miles an hour. I do not think a verdict would have been set aside finding the higher rate of speed; and I do not hesitate to say that such a rate of speed across the crowded thoroughfares of so large a city is, in my opinion, indefensible. It is quite clear that such a rate of speed, if it was maintained in the present case, caused the collision, and that the usual rate of speed would have prevented it.

The more important and difficult question is whether Wilds was guilty of negligence contributory to the accident. He is charged to have been guilty of negligence in . several particulars: 1st. In want of attention to the usual signals—the bell, the whistle and the flag. 2d. In not observing, or wilfully disregarding, shouts and warnings of danger. 3d. In driving at an improper rate of speed, and manifesting a reckless determination to cross the track in the face of known and impending danger.

In reference to the signals of danger proper to be given by the defendants, it would appear that the bell was seasonably rung. Wilds may or may not have heard it. We cannot say that he did; others near him did not. We can scarcely say that it was negligence not to have done so. The whistle was sounded only just before the collision, and probably not in season to have given any useful warning to him. The flagman was at his post, and had been waving his flag, but was not in the1 act of doing so when Wilds approached the crossing. He appears to have been momentarily engaged in the praiseworthy act of warning away a woman who was approaching the crossing, and yet it may be that' the absence of the usual flag signal may have induced Wilds to approach the crossing with less hesitation and care than he would otherwise have done. In none of these things does it appear to me was there such marked carelessness on his part as to have justified a refusal to submit the question to the jury.

He does not appear to have approached the crossing at an improper rate of speed, though there is some conflict of evidence on that point; but he is supposed to have been inattentive or recklessly indifferent to shouts of warning and danger. The question is, on the evidence given on the second trial, whether these warnings were in fact given. Mrs. Banker swears that she gave them, but some doubt is thrown .on her testimony by that of McLaughlin, a witness not sworn on the first trial, who was in a situation to hear, and did not hear the warning professed to have been given by Mrs. Banker. She is also contradicted or differed from by other witnesses. Orr swears that O’Brien gave the warning, but O’Brien does not say so himself, and both O’Brien and Orr are to some extent impeached by general evidence attacking their credibility as witnesses. And they are not supported by counter evidence. The question is whether, on this material part of the case, there was not sufficient doubt thrown upon the testimony of Banker, O’Brien and Orr, or contradiction given to it, to raise a question of credibility for the jury and not for the ■ court. I incline to think, on the whole, that there was.

The remaining question is whether Wilds’ approach to the place of collision, and attempt to cross the track, were marked by such evidences of carelessness or recklessness as should defeat the recovery. It is upon this part of the case that I have felt the greatest doubt. I should certainly have supposed it a more prudent act not to have attempted to cross the track, but that is not quite the question to be determined. It is whether, on the whole, it was a question for the jury—whether mis-judgment was such carelessness as should defeat the action—whether a man of ordinary prudence might not have doubted whether it were not probable the crossing could be safely effected and safer to attempt it than to run the hazard of the engine and train coming up directly in the face of the horses in close proximity to the track—whether the sudden and impending-danger would not excuse an error of judgment or the fail'ure to manifest that coolness and self-possession which, under ordinary circumstances, might be expected or demanded; and whether, on the whole, these were not more properly considerations to be addressed to the sound sense and temperate discretion of .a jury, under cautious instructians from the court, than such as should influence the court to take the matter into its own keeping and dispose of it upon its own responsibility, without the intervention of a jury. It is a case for doubt and hesitation, I think, as to which was the more proper course. And yet I am inclined to think it more consistent with the theory on which the -right of trial' by jury rests, and safer for the general interests of parties, to resolve such doubts in favor of the submission of such questions to the jury than the withdrawal of them from their consideration.

In arriving at this conclusion, I have done so upon the idea that it is ordinary care and prudence and not the highest and most extraordinary manifestations of those qualities which are exacted of persons circumstanced as Wilds was upon that occasion. The learned justice who pronounced the prevailing opinion in this court when- the case was here formerly for review, supposes that all distinctions as to the different degrees of care requisite under such circumstances were intended to be obliterated by the judgment of this court; but I do not so regard it, and shall not come to such a conclusion until I see more conclusive evidence of such a determination than a careful review of the results arrived at in that case has led me to make.

In granting the non-suit at the circuit, I was governed by a wish to conform to what, on a hasty examination, I. ■supposed to be the authoritative judgment of this court as declared in the opinion referred to; but a more careful revision of it, in the light of the facts of this case as compared with those then presented, has satisfied me that in arriving at the conclusion just expressed on this appeal, I am in no degree departing from the principles of the judgment then pronounced.

I am in favor of reversing the judgment of the supreme court, and ordering a new trial, with costs to' abide the event. Judgment affirmed.


author: Ingraham, J. Denio, Ch. J.

text:
    Nathaniel Sumner v. The People.
    To constitute usury, there must he either a payment, or an agreement hy which the party taking it is entitled to receive more than seven per cent. If the payment is conditional, and that condition is within the power of the debtor to perform, so that the creditor may by the debtor’s act be deprived of any extra payment, the transaction is not usurious.
    B., the owner of a farm which was subject to a mortgage held by S... being in arrear in his payment of principal, applied to S., on the 30th of Novem- • her, 1857, for an extension of the time. After some negotiation between the parties, B. signed an agreement in these words: “If Ido not pay N. S. the $800 I owe him by December 5, 1857, I will give him sixteen dollars extra.” Payment of the $16 was endorsed upon the contract, when given in evidence: Held, that an indictment would not lie against S. for the offense of receiving usury, contrary to the statute. (Laws of 1837, chap. 430, § 6.)

      Writ of Error to review a Judgment of the Supreme Court.

    The plaintiff in error was indicted in the oyer and terminer of Delaware county for the offense of receiving usury, contrary to the statute. (Laws of 1837, chap. 430, § 6.) The indictment was sent to the court of sessions, where the trial took place on the 7th of December, 1859. The prosecutor and principal witness was John B. Burdick. It appeared that he was the owner of a farm which was subject to a mortgage held by the defendant (the plaintiff in error), which had been executed by a former owner, from whom Burdick acquired title. ' It was executed in 1851 to secure $800, payable by installments with annual interest, and the whole principal became payable on the first of January, 1856, and B.urdick had paid the interest, but no part . of the principal. On the 30th of November, 1857, Burdick applied to the defendant to obtain time for the payment of the principal—not having been able to raise the money as he expected to have done. After some conversation between them, Burdick signed an agreement in these words: “ If I do not pay N. Sumner the $800 I owe him by Decernher 5, 1857, I will give him sixteen dollars extra. Nov. 30, 1857.” There was endorsed upon this paper, when given in evidence, in the handwriting of the defendant, as follows: “ Eeceived the within sixteen dollars.” Burdick was examined and cross-examined as to the circumstances, at considerable length. He swore that he paid $400 of principal and lawful interest on the $800 about February 1, 1858, and the remaining $400 and all the lawful interest about the 1st of February, 1859; and that in addition to this he paid the $16 mentioned in the paper, but it was not clear at what precise time the latter was paid. It seems, however, to have been at or .shortly after signing that paper. The district attorney endeavored to show by him that at the time of signing the writing the defendant agreed to wait one year for the payment of the debt, and in some of his answers the witness stated that this was so; while in other answers he said, “ I think he spoke about waiting one year,” and “ there might have been something said about his waiting one year.” His testimony was somewhat confused, but he was clear as to his having paid the sixteen dollars; and as to the time of paying the principal and lawful interest, and upon these points there was.no contradiction. The only other witness was a brother óf John B. Burdick, who testified to an admission of the defendant that John had paid him two per cent-extra besides the interest. The defendant’s counsel moved that the court direct a verdict for,the defendant, for the reason that the sixteen dollars extra was taken on a contract for a penalty for the non-performance thereof, and not for 'a loan or forbearance of money. The motion was denied, but the court deóided that there was evidence sufficient to submit the case to the jury. The defendant excepted. The counsel also requested the court to charge, that if the sixteen dollars extra was paid to the defendant by J. B. Burdick, “ on the happening of any contingency over which the said Burdick had a control, it was not usury.” The court declined to so charge. and the defendant’s counsel again excepted. It is stated generally that the court charged the jury, but the charge is not set out. The jury found the defendant guilty, and the court sentenced him to pay a fine of $100. The judgment was affirmed by the supreme court.

      W. Murray, Jr., for the plaintiff in error.

      R. H. Root, for the defendant in error.
   Ingraham, J.

The plaintiff in error was indicted for fating usury. The indebtedness arose upon a bond and mortgage; when the principal was due the debtor gave to Sumner an agreement in these words: “ If I do not pay N. Sumner the $800 I owe him by December 5,1857,1 will give him sixteen dollars extra, John Burdick, November 30, 1857.” A receipt for the money was endorsed on it. The plaintiff was convicted. Upon the trial, the judge submitted to the jury the . question whether money had been taken. This, of course, involved the inquiry whether the written agreement was intended as a cover for usury, and the jury have found that it was. With that ruling and the finding we cannot interfere. There was evidence submitted to the jury in addition' to the written agreement, from which the jury were to decide upon the intention of the parties, and the court rightfully refused to direct a verdict for the defendant. Whether the $16, was to be paid as a penalty for breach of a contract, or whether it was a cover for usury, could only be ascertained from the acts and admissions of parties. And the decision of the jury, if there were no errors in the instructions, would bind the parties. The judge was asked to charge the jury, that if the $16 was to be paid by Burdick on the happening of any contingency over which the said Burdick had control, it was not usury. This was refused. To constitute usury, there must be either a payment or an agreement by which the party taking it is entitled to receive more than seven per cent. If the payment is conditional, and that condition is within.the power of the debtor to perform, so that the creditor may by the debtor’s act be deprived of any extra payment, it would not be usurious; This view was expressed by Paige, J.,*in Pomeroy v. Ainsworth (22 Barb. 124), where he says: “If the gain to the lender beyond the legal rate of interest is made dependent on the will of the borrower, as where he may discharge himself from it by payment of the principal, it is not usury.” And again: “If it was in the power of the party to discharge himself from the burden by repaying the amount of the advances, &c., it might be objected to the charge of usury that there was no certain gain beyond legal interest.” So it has been held that a bill payable in four instalments, with the interest added, and conditioned that the whole shall become due if default is made in one installment is not usurious, but a penalty. (Wells v. Girling, 5 Eng. Com. Law R. 733.) And if more than legal interest be reserved upon a contract for the loan of money, yet if it be a part of the agreement that the borrower may discharge himself from payment of any interest by repayment of the principal on a certain day, the case does not fall within the statute. (2 Hawk. P. C. b. 1, chap. 82; Floger v. Edwards, Cowp. 113; Morripet v. King, 2 Burr, 891; see also Ord on Usury, p. 48.)

I think the judge erred in refusing to so instruct the jury, and that the judgment should be reversed therefor. It is said, in the opinion delivered at the general term: “It is clear that the contract, on its face, was not usurious, and we should presume that the court charged the jury that upon its face it was not usurious; because such a charge would be correct.” I am at a loss to see upon what ground a court has a right to presume a judge charged correctly in the face of a refusal to charge what the law is conceded to be. On the contrary, where the judge refuges to charge a plain proposition of law, the presumption is that he holds the law to be otherwise, and his refusal is based thereon.

The judgment should be reversed and the case remitted to the sessions for a new trial.

Denio, Ch. J.

Lord Mansfield is reported to have said that whenever it is in the power of a known borrower of money to pay the principal within a limited time without interest, upon non-payment the reservation of a larger sum than the statute allows is no usury. (Floger v. Edwards, Cowp. 112, 115.) He cites Hawkins P. C., chap. 82, § 119, which is to the same effect. The same doctrine is laid down in the older authorities, as in Ganet v. Foot (Comberback, 133), where Holt, Ch. J. held that “if I covenant to pay £100 a year hence, and if I do not pay it, to pay £20, it is not usury, but only in the nature of a nomine \poenoe." So in Roberts v. Venague (Cro. Jac. 517), one of the points stated as law by Doderidge, J., was this: “If I secure-both interest and principal, if it be at the will of the party who is to pay it, it is no usury; as if I lend to one £100 for two years, and to pay for the loan thereof £30, and if he pay the principal at the year’s end, he shall pay nothing for .interest, this is not usury, for the party hath his election, and may pay it at the year’s end, and so discharge himself.” And the point was expressly adjudged in Burton’s case (5 Rep. 68), where the agreement was that A. should lend B. one hundred pounds, and that B. should grant to A. and his heirs a rent of twenty pounds, in consideration that if B. should pay the one hundred pounds to A. on a certain day, which was before the day on which the rent was • appointed to be paid, then the rent should cease, it was held not to be usurious, “for it was in the election of the grantor to have paid the one hundred pounds, and to have frustrated the rent. So that the grantee (as the nature of usury is) was not assured of any recompense for the forbearance of his one hundred pounds for a, year,, and the said rent of twenty pounds is but a penalty to the grantor and assurance to the grantee for the payment of the said one hundred pounds.” The same doctrine has been asserted and acted upon in more recent times. In Long v. Storie (10 Eng. Law and Eq. 182, A. D., 1852), usury was sought to be established in a security for a loan, from the circumstance that the money was not advanced until some time after the date of the instrument, which called for interest from that date at the rate of five per cent. But there was a provision in it by which the creditor agreed to receive interest at the rate of four per cent only if it was promptly paid. This reduction of interest, if the debtor availed himself of the provision, would more than countervail the excess which would have arisen out of the ante-dating of the instrument. And it was held, upon the dictum of Lord Mansfield, which I have referred to, that this was an answer to the imputation of usury, because the creditor, by making, punctual payment of the interest, would not have paid beyond five per centum pel annum. The same principle was affirmed and applied in the late supreme court of this state, in The Bank of Chenango v. Curtiss (19 John. 326), where some of the foregoing authorities were referred to as establishing the law as I have stated it;' and in the case of Cutler v. How (8 Mass. 259), the principle was applied to a contract which would have been plainly usurious but for an option reserved to the debtor to relieve himself from the usurious provision by paying in advance of the time fixed by the general terms of the agreement. But contracts of this character ought to be narrowly watched; for if the penalty was a mere contrivance to avoid the statute of usury, the arrangement will still be held usurious. This assertion was point edly inculcated in Burton’s case, above mentioned, where, although the contract was saved, it was resolved by the whole court that notwithstanding the privilege of redemptian reserved, if it had been agreed between the parties that the one hundred pounds should not be paid at the day, “ and the clause of redemption was inserted to make an evasion out of the statute, then it had been an usurious bargain and contract within the statute; for if, in truth, the contract be usurious against the statute, no color or show of words will save, but the party may show it, and shall not be concluded or estopped by any deed, or any other matter whatsoever; for the statute gives averment in such cases.” And Lord Mansfield thought it necessary to guard against an abuse of the principle laid down by him as above mentioned, by the memorable declaration so often quoted, that where the real truth is a loan (or forbearance) of money, and more than five per cent be taken, the will of man cannot find a shift to take it out of the statute. (Cowp. 114.) It must be borne in mind that if more than the statute rate be received or taken, the event of which is to operate as a diminution or extinguishment of the interest, must not be anything other than the absolute will of the debtor. This was laid down in Burton's case, and was adjudged in the case cited from Crohe, James, and is moreover the ground of the decision in Cleveland v. Loder (7 Paige, 557). Where, in such cases, the obligation to pay the excessive interest, is made to depend upon the happening of a collateral event, the principal must also depend upon the contingency. Where that is the case, the loan will not be usurious, unless the contingency is colorable and the agreement a cover for usury.

By the terms of the written agreement of Burdick, the usurious interest was not to be paid unless he should make default in the payment of the principal by the fifth day of December ensuing the making of the instrument. If that was a sincere and honest agreement, the undertaking was not usurious. But the day named was only five days from that on which the arrangement was made, and Bur-' -dick had, therefore, been unable to raise the considerable sum which was to have been paid, and was applying for indulgence, and it does not appear that he had any expectation of raising the amount within the short period allowed by the writing. Hence there is pretty strong reason to believe that the sixteen dollars was paid to obtain a longer extension than the five days, and that this short period was inserted to give color to the agreement and to protect it from the imputation of usury. If the case has been properly put to the jury, the verdict, I think, must be considered quite satisfactory. Whether a particular contract, not usurious per se, is such on account of its being a cover, .for usury, upon the principles which have been stated, is generally a, question for the jury. The defendant was entitled to have them properly instructed in matter of law, and the single question before us is, whether that was done in the present case. The point was first taken by a request to the court to direct a verdict of acquittal for the reason that the sixteen dollars was taken on a contract for a penalty for the non-performance thereof, and not for a loan or forbearance of money. The instruction was refused, but, as the case states, the court decided that there was evidence sufficient to submit the case to the jury. The exception to this disposition of the request was not well taken. There was undoubtedly evidence enough to raise a question as to the real intention of the parties. It is apparent, I think, from this request and the ruling upon it, that' the idea of a colorable contract and á disguised arrangement for securing usury, was in the minds of the court and the counsel. It is inferable that the • opinion of the court was that upon the strict reading of the contract the sixteen dollars was inserted as a penalty, but that the jury had a right to determine whether the stipulation was sincere or colorable only. The next step was the general charge to the jury, which is not given. The defendant then prayed to have the jury instructed that if the sixteen dollars extra was paid to the defendant, on the happening of any contingency over which the said Burdick had a control, it was not usury. The request was not happily expressed, but it, no doubt, referred to the rule of law which I have stated, and it is sufficient to indicate a desire to have that rule laid down. The defendant could legally claim to have it stated to the jury, with its necessary qualifications which I have .mentioned. If these qualifications were in the minds of the parties and the counsel, as it appears to me they were, the court could not properly state the principle without the necessary exception. Whether the whole subject had been properly explained in the charge which had been given, we cannot certainly know, but inasmuch as the court, in the- denial of the first request, had. stated that these were questions for the deliberation of the jury, it is fair to suppose that the real design of the arrangement constituted the matter which was to be left to them. I am, upon, the whole, of opinion that the request was too strict and absolute. It embraced only a part of the legal proposition which the case called for, and that,.,if it had been charged in the terms suggested by the request, would have been calculated to mislead the jury. If I am right in this, the judgment of the supreme court, affirming the determination at the sessions, ought to be affirmed.

Selden and Johnson, JJ., concurred with Denlo, Ch. J.

All the other judges being in favor of reversal, judgment reversed.