PECKHAM, J.

Two points were raised by the defense on the motion for a nonsuit — only one of them is insisted upon here. It is not here urged that the defendant was not negligent. It is quite clear that there was evidence enough to go to the jury as to the proper and timely ringing of the bell — as well as in regard to the continuous blowing of the whistle, as required by the statute. There was a good deal of evidence of negligent omission as to both. There was also evidence that the defendant had deprived the public in a large degree of the power of protecting itself from danger by these piles of wood and by its building, which prevented any one from seeing the danger until it might be too late.

But, as the point of defendant's freedom from negligence is not now urged, there is no occasion for its discussion.

Then, was the deceased guilty of negligence contributing to his death?

This train was running from thirty to thirty-five miles the hour. At thirty-five miles, it ran over three rods in a second. He drove slowly and carefully up to the point where he could first see on the track to the west, and then he looked and "instantly" did all he could to hold back his horses — all in vain. It should be remembered that he looked the first instant that looking could be of any benefit. We may safely say that he heard no whistle or bell. Seven witnesses, at least, within three rods of him, and some much nearer, were in like condition, hearing neither bell nor whistle, viz.: Mrs. Hooper, David Harrington, Isaac Cook, Sherman, Terry, Harriet Cook, and James Harrington. It is stated in defendant's brief, that the last witness heard the bell. On looking over his testimony, it is not found there. He heard the whistle to brake just before deceased was struck — not the bell at all. There was a high wind, considerable noise from the steam sawing machine, the snow was blowing, and it was, no doubt, difficult to hear the cars in that narrow defile. It may safely be said that deceased did not hear the cars, nor any indication of their approach. Any twelve fair-minded men would so find the fact, under the evidence in this case. There is no evidence that he intended to commit suicide. The counsel for the defense does not intimate that deceased had any such intent. He was an industrious, sober man, and intended to be careful. He risked his life on his care here, and erroneously deemed it safe.

It was urged by the defendant's counsel that deceased was guilty of negligence — that he ought to have been careful to look and listen, c.; but he failed to show in what respect deceased was careless. All authorities say he must be careful. The deceased was so here. He drove carefully, and he looked the first instant that looking would be of service. What did he omit to do? It was well observed by the learned justice who gave the opinion in this case at General Term, that no case had gone the length of holding "that a person approaching a railroad crossing was bound to stop his team and wait till he could ascertain whether a train was coming, or to leave his team and go and look up and down the track, or the law would hold him" negligent.

But if he had done that even — if he had tied his team and gone and looked up and down, it would not have afforded him the least protection. In less than twenty seconds from his looking, the train would, or might have been, upon him. He could see but forty rods — the train ran that in less than twenty seconds — and he must have used more than that time in returning to his team and getting under way. Is it said he should have left them untied? If he had, and they had moved on and been run over, the cars thrown off the track and other damage ensued, he would have been justly chargeable with negligence.

Again, I ask, what did the deceased omit to do that made him negligent? The omission is not, and I think it cannot, be stated. The deceased had as clear a legal right to travel over this road as the defendant had. He was bound to exercise the care in doing so that people in general would exercise under like circumstances. If he exercised that care, as I think, under the circumstances, he did, and was unable to cross safely, the defendant is liable.

The great difficulty of crossing had been caused by the defendant itself in erecting the building and piling up the wood so as entirely to obstruct the view. Deceased is then charged with negligence in not seeing where defendant's own wrongful act had put it out of his power to see. The act was wrongful, as defendant had no right thus to fill up the road with wood.

Thus far I have said nothing as to the submission of this case to the jury. If there was any doubt as to the credibility of any witness, as to the inference to be drawn from any fact, or as to the evidence to prove a fact, then it was, of course, a question for the jury. In my opinion, there was nothing in the conduct of deceased on which to base a charge of negligence. At this point I turn to the opinion of the learned justice who dissented at General Term, to learn what the deceased omitted. It is there said, "it was his duty to have looked both ways upon the track before he attempted to cross."

In this case it was not material for him to have looked east, as no danger came from that direction. He did look west on the track the instant he could do so — the instant he could see on the track. He fully complied in spirit with the requirement of the learned justice. If this action, under these circumstances, cannot be maintained, then the citizens have no legal right to travel on this public road. It is worse than idle to call that a right, which may be violated or destroyed with impunity.

I am quite aware of the late tendency and course of judicial decision in this State, to assume the province of jurors in cases of negligence charged upon railroad companies, entirely at war, in my opinion, with the well-settled doctrines of the common law. I would not go further in that direction. No case can yet be found that would have warranted the court to nonsuit this plaintiff. For the honor of the law, as well as from considerations of sound policy and the impartial administration of justice, I trust there never will be.

Is there not some defect in the laws, or in their administration, when so many lives are sacrificed — so many human beings killed annually at these crossings? Does any public necessity or public benefit require this destruction?

If courts may be swayed by considerations of public policy, is it not their duty, as it should be their inclination, to diminish this loss of life, if their decisions can have that tendency?

The counsel for the defense intimated that, if this action was sustained, others would be induced to drive recklessly on the track and endanger the lives of passengers in the cars.

Human experience furnishes no ground for such an intimation. It is entirely idle. What a man will not do to save his life, no forfeiture of goods or penalties that law can inflict will make him do. He will adopt all the precautions he deems appropriate to protect his life. Human penalties can make him do no more. They cannot change man's nature. Hence, rules for his government should be adapted to the actual man, as he is. You do not expect the same care and caution from the mass of ignorant laborers that is exercised by educated, grave philosophers. The mass of men would never exert it, and the law that requires it would be absurd.

He should be called upon for such care only as a man in his situation and condition in life would ordinarily exert under like circumstances. Does not a juror know what that is, as well as a judge? The ignorant and the unwary are entitled to the protection of the law, as well as the wise and the educated.

There is very little justice in depriving a man of his life for not exercising more care than his capacity will allow him to exert. The most cautious and thoughtful are sometimes absorbed by their business, their cares, or their griefs; and thus they cannot exert their usual caution.

What is the remedy? While all proper care should be demanded from the public, the protecting vigilance should be required from railroads. It is all in their power. They are authorized to cross a public road above or below its surface. Why should they not do so, and thus avoid all peril to travelers on the highway, as well as to their own passengers?

They should employ competent, vigilant men on their train, who would watch and warn of danger, ring the bell properly and sound the whistle, and yet watch and see at these crossings that the track was clear. They can always effectually do so, if the track be sufficiently free from obstructions to its view; and it is the duty of the railroad to see that it is free.

Let it be held, as the defense contends for in this case, that no amount of negligence of the railroad can make it liable for killing a man at a crossing, and the negligence will increase with entire certainty. What matters it to them whether the bell is rung, if no liability follows from its omission, no matter what the damage? Reckless indifference to their duties to the outside public, in the employés of the road, is thus encouraged and sustained, and loss of life the certain consequence.

They may omit to ring the bell entirely, and the railroads may, as they did here, obstruct the view for their own accommodation, so that the traveler, look all he may, cannot see the danger till too late to escape; and what protection has the public in the exercise of its conceded right to cross a public road?

It is urged that deceased must have known that this train was due. There was evidence that he lived within about two and a half miles of this depot; that the time-table had been altered within a month; and he had been drawing wood to the depot only for one day. There is no high degree of probability that a laboring man, like deceased, had any accurate information on that point, unless his business necessarily required it. If that were a material point, certainly, under the evidence, it was a question for the jury.

The train was not far from its regular time; the witness thought it a little behind, but he thought not as much as fifteen minutes. Deceased might have supposed it had passed, if he knew its regular time for passing; but, in all probability, he then had no certain knowledge of the actual time. Such a man would scarcely have a watch. In my judgment, this point as to time is entitled to very little consideration.

I think the court committed no error in its refusal to charge. The charge substantially accorded with most of the requests, and there was no legal propriety in calling for a repetition in other language; nor did it impose any obligation upon the court to make such repetition. Where the requests differ from the charge, I do not think the court erred in refusing to grant them.

There is no reported decision in this State, that I have seen, not in harmony with the maintenance of this action. Principle and public policy also sustain it.

The judgment should be affirmed.

Concurring, PORTER, WRIGHT, SMITH and HUNT, JJ.

MORGAN, J., read an opinion for reversal, in which DAVIES, Ch. J., and LEONARD, J., concurred.

Judgment affirmed