HARDIN, P.J.:
The facts and circumstances disclosed by the evidence are sufficient to make it a question for the jury whether the defendant was guilty of negligence which caused or contributed to the injury which was received by the plaintiff. ( Greany v. L.I.R.R. Co., 101 N.Y. 423; Parsons v. N.Y.C. H.R.R.R. Co., 113 id. 364; Swift v. S.I.R.T.R.R. Co., 123 id. 649; Miller v. N.Y.C. H.R.R.R. Co., 82 Hun, 164; S.C. affd., 146 N.Y. 367.)
(2) Upon all the evidence given at the trial we are inclined to think that the question of whether the plaintiff was guilty of contributory negligence was one of fact proper to be submitted to the jury. ( Miller v. N.Y.C. H.R.R.R. Co., 82 Hun, 164; affd., 146 N.Y. 367; Wilcox v. N.Y., L.E. W.R.R. Co., 88 Hun, 267; Salter v. U. B.R.R. Co., 59 N.Y. 631; S.C., 88 id. 42.)
When Smith and Speer discovered the on-coming train, whether it was wise to advance or to endeavor to hold the team may have been a very close question, and, considering the imminent peril they were in, they could not be expected to act with cool deliberation; and whether, under all the circumstances, their action was such as might reasonably be expected, was a proper question for the jury to determine. ( Miller v. N.Y.C. H.R.R.R. Co., supra.) "When a person is confronted by danger from both of two lines of action, one of which he must take, his choice of either is not negligent." (Leavitt's Law of Negligence, p. 608, § 156; Buel v. N.Y.C.R.R. Co., 31 N.Y. 314; Coulter v. Am. Merch. Un. Ex. Co., 56 id. 585; Twomley v. Cent. Park, N. E.R.R. Co., 69 id. 158; Salter v. U. B.R.R. Co., 88 id. 42.)
(3) After the delivery of the body of the charge the counsel for the defendant asked the court to charge, and it did charge: "That if Speer, the driver of the horses, was negligent in not exercising care in approaching the crossing, or at the crossing, Mr. Smith, the plaintiff, is chargeable with Speer's negligence and the consequences thereof."
Thereupon the counsel for the defendant requested the court to charge: "That if Speer, the driver, failed to look for the train, or pay any attention to its approach, he was guilty of negligence, and Smith, the plaintiff, is chargeable therewith, and if the jury find that Speer's negligence contributed to the accident, the plaintiff cannot recover."
The court declined to so charge, and added, viz.: "The law about that is just this, Speer was the hired man there; he was under the control of Smith, and if Smith himself was using proper care and watching out for that train, then it made no difference whether Speer was doing it or not, but if Smith was not doing anything, and leaving it for Speer to see, not only about the driving of the horses, but watching out for the train and trusting the whole matter over to Speer, then Speer's negligence would be the negligence of Smith. But if Smith was taking care for himself, then it does not make any difference whether Speer was there or not, because Smith was doing all he was called upon to do."
Thereupon the defendant excepted to the refusal of the request made and also excepted to the charge as made. In considering these exceptions it is proper to call to mind the situation of Speer and Smith at the time they were attempting to cross the defendant's road. They sustained to each other the relation of master and servant or principal and agent, and all the duties incident to those relations are to be imputed to them respectively. Speer was driving at the time, having the lines in his hands and the management of the team. He says in the course of his testimony, viz.: "I was looking at the horses going along down. I had the responsibility of driving them. There were no directions from Smith about the manner of driving."
According to the plaintiff's testimony he was doing nothing to control or manage the horses. He says he looked and listened; yet he states that he committed the control of the horses to his servant Speer. The request made called for a consideration of Speer's failure of suitable attention in approaching the crossing, and also of the manner in which he handled the horses at the time the danger was discovered, especially in his efforts first to stop them and then afterwards his sudden change of mind in urging them forward. The burden was upon the plaintiff to show that he was free from contributory negligence. In bearing the burden it was incumbent upon him to indicate, by the testimony relating to the circumstances preceding and attending the crossing, that he and his servant had used due diligence in approaching and attempting to cross the railroad.
In Donnelly v. Brooklyn City R.R. Co. ( 109 N.Y. 16) the plaintiff was riding to market on a fish wagon and the two men were so situated that each was in a situation where he could control or manage, or contribute to the management of, the team. The plaintiff was injured. In the course of the opinion delivered in that case it was said: "We think the plaintiff was chargeable with the neglect of his comrade."
In Brickell v. N.Y.C. H.R.R.R. Co. (12 N.Y. St. Repr. 450; S.C. affd., 120 N.Y. 290) it appeared that the plaintiff took passage in Pulver's top buggy for the village of Palmyra, and that plaintiff received injuries in attempting to cross the railroad, and in the course of the opinion delivered in that case I had occasion to say: "If the plaintiff or Pulver had attended vigilantly to their duty in approaching the crossing the injuries in question might have been averted. Apparently they were occupied in conversation, giving no especial attention to the circumstances affecting their safety in crossing the railway during the progress from the south side of the bridge 120 feet onward."
FOLLETT, J., in concurring in that opinion, stated that a witness testified: "That he saw and heard the train and stopped and waited for it, but that the carriage in which the plaintiff was riding kept right on and was struck. The plaintiff, by his own evidence, established that his negligence contributed to the accident."
When that case was under review ( 120 N.Y. 290) it was said in the course of the opinion, viz.: "The rule that the driver's negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant, or principal and agent, does not exist, or where the passenger is seated away from the driver, or is separated from the driver by an inclosure and is without opportunity to discover danger and to inform the driver of it. ( Robinson v. N.Y.C. H.R.R.R. Co., 66 N.Y. 11.) It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable. The plaintiff was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and environments, and with at least the same, if not better, opportunity of discovering dangers that the driver possessed, and without any embarrassment in communicating them to him."
In speaking of this rule it is said in Wood on Railroads (ed. of 1894, § 322a) that "where the master is seated on the driving box with his servant, who holds the reins, and an injury occurs while they are driving over a crossing, the master's action for damages will be barred if the negligence of his servant contributed to cause the injury."
And in volume 4 American and English Encyclopædia of Law (p. 82, § 38) it is said, viz.: "Imputable contributory negligence, which will bar the plaintiff from recovery, exists when the plaintiff, although not chargeable with personal negligence, has been by the negligence of a person in privity with him, and with whose fault he is chargeable, exposed to the injury which he received through the negligence of the defendant."
In the course of the opinion delivered in denying the motion at Special Term for a new trial, the learned trial judge observed: "If the plaintiff was taking care for himself, then it does not make any difference whether his hired man was there or not, because the plaintiff was doing all that he was called upon to do. * * * If a man was taking care of himself for his own safety, he certainly could not be made liable for any accident that occurs, although somebody else, upon whom he was not depending, was not using proper care."
We think the failure of the explanation made in the charge and of the explanation made in defense thereof found in the language we have just quoted, lies in the omission to apply all the facts and circumstances disclosed by the evidence to the rule of law which casts upon the plaintiff the burden or showing that he was not only personally free himself, but that his agent or servant, who was engaged in the same common purpose, at his instance and request, of approaching and safely crossing the tracks of the defendant, was free from contributory negligence. (See, also, Little v. Hackett, 116 U.S. 366.)
It is contended, however, by the learned counsel for the respondent that "even, if technically, the defendant was entitled to the abstract charge requested, no harm has happened to it."
We are not able to assent to that view of the case. The evidence relating to the plaintiff's freedom from contributory negligence presented a very delicate question for the jury to determine, and the jury, as the charge was made, and as the refusal was made, and as the explanation was made, may have had an imperfect understanding of the exact rules of law which were applicable to the facts relating to the question of the plaintiff's freedom from contributory negligence. We cannot assent to the supposition that the jury may not have been misled by the rules of law delivered to them by the learned judge at the trial. We are of the opinion that the exceptions present such errors as require that there should be a new trial.
GREEN, J., concurred; WARD, J., concurred in the result; FOLLETT and ADAMS, JJ., dissented.