a prior part of the charge, the jury had been told to consider, in estimating what would be negligent in Wilds' approach to the crossing, "whether he understood the signals." Thus putting on the company the obligation not merely of making the signals, but of furnishing understanding to the other party. The defendants' request certainly gave, in precise words, the true legal rule of the case; and he was entitled to have it given to the jury, substantially as he asked it, without qualification, or to have it plainly refused. The defendants' next request to charge was, "that if the deceased approached the crossing, knowing the position of the railroad, and that trains were frequently run thereon, at such a rate of speed that he was unable to stop his horses before actually getting upon the track, and that speed contributed to cause the collision, the plaintiff cannot recover." This, inasmuch as the charge had already as against the defendant included the element of speed as constituting negligence, and had said "the speed should be regulated with reference to the apparent danger," this would seem an entirely proper request, that each party might be held to looking out for the apparent danger. It was refused, except with the qualification that the defendant must have used all proper precautions to notify travellers of the approach of the trains" (with other qualifications as to ordinary prudence). Which is equivalent to saying that the want of care of Wilds depended upon the exercise of care by the company, and that he might approach a dangerous place with utter recklessness, unless the company used all care; while the company must approach the same place with "all proper precaution," or be liable, not merely for its own want of care, but for that of all comers. This is too unequal to be sound. Each one's care or want of care exists in his own act, without the slightest reference to care, or the want of it, in the other party. Each is governed by his own independ ent volition, with which the other can by no possibility have any connection; and on the exercise of that volition by each, and on that only, depends the act which is either careful or not. A further request to charge on the part of the defendant, contained the proposition, "that if the deceased was aware of the approach of the train in time to have stopped before reaching the track upon which the train was approaching, and intentionally drove upon the track after being aware of the train, the plaintiff cannot recover." The court refused to charge in this form. The request covers this ground: that if the deceased, knowing that a train was approaching, in season to take his own course, and decide whether to be safe and stop, or to go on and run his chance, chose to go on, he must abide the risk that he took. It is rather difficult to see why this is not law. Certainly no legal rule is consistent with qualifying the position, by leaving it with the jury to speculate on the idea whether he would have stopped in the exercise of reasonable care, &c., and could not reasonably expect to pass in safety, and intentionally drove upon the track," &c. This limits the negligence on his part to a grade little short of suicide. Another of the defendants' requests to charge claimed that "the deceased cannot, by his own negligence, cast upon the defendants the necessity of exercising extraordinary care." court added after the word "negligence," "as above defined and contributing to the injury." The request seems to state an accurately correct, legal proposition, and the defendant was entitled to have it given to the jury as herein before stated. The The judgment of the Supreme Court and its order should be reversed, and a new trial granted. Costs to abide event. The rule, in regard to the kind of negligence in a plaintiff which will preclude him from recovering damages for the acknowledged negligence of the defendant, is here very carefully and perspicuously defined, and, in the main, as t seems to us, very accurately. The principle upon which this exclusion goes, is not, in all the cases where the question has occurred, very distinctly presented. It rests upon the impossibility of determining accurately how much of the injury is attributable to the fault of the plaintiff, and, by consequence, how much to that of the de fendant; and the further consideration, that the plaintiff has no right to ask a jury to guess at the measure of damage caused by the defendant's negligence, when, but for his own fault, the decision would not have been embarrassed by any uncertainty of that kind. There is also another difficulty in cases of this kind, i. e. in determining precisely whether the negligence of the one party, or that of the other, by itself alone, would have produced the injury. In any case where that is clearly determinable, and it is certain the negligence of the plaintiff, although contributing somewhat towards the production of the injury, would, nevertheless, have been inadequate to its production; and the negligence of the defendant, therefore, did produce the injury, and would have produced it, altogether independent of the negligence of the plaintiff, it seems just and reasonable that the defendant should be held responsible for the resulting damage. And in almost every cause in which we have participated in the trial, where this question has arisen, juries have adopted this view, in defiance of the ruling of the court, simply because to their unsophisticated common sense, it appears just and reasonable, and they cannot be made to comprehend any other rule upon the subject. But the courts have not, as yet, adopted any such sensible rule. It is hinted at in the foregoing definition of Mr. Justice GOULD; but the whole definition excludes this plain and palpable rule. But the courts seem to us verging towards this point. For they have decided, repeatedly, that any negligence which is not the proximate cause of the injury, or which does not contribute directly to produce the injury, will not preclude the plaintiff's recovery: Keitt vs. Pinkham, 43 Maine R. 501; Colegrove vs. N. Y. and Harlaem and N. Y. and N. H. Railw., 6 Duer 382. And if the defendant might have prevented the injury, notwithstanding the negligence of the plaintiff, he is liable. Davis vs. Munn, 1 M. & W. 564; Illidge vs. Goodwin, 5 C. & P. 190; Augusta and Savannah Railw. vs. McElmurry, 24 Ga. R. 75. But the majority of recent cases have not yet said that any negligence of the plaintiff directly contributing towards the production of the injury, but in itself inadequate to its production, will not preclude a recovery. The conclusive argument against this view hitherto, has been the difficulty or impossibility of always determining the facts involved in the inquiry in that form. But that is no greater than in multitudes of other questions, which arise almost daily, in the course of jury trials. And the uncertainty of proof is never held to affect the principles upon which causes are to be submitted to juries. The unsatisfactory character of the rules of law applicable to questions almost always arising in trials of this character has led to the most uncertain results in regard to them, and results the most unjust and unreasonable, if we regard the rules and principles of law now applied to the subject, as entirely sound. We do not intend to say that they are not so. But it has long seemed to us that they will require revision, and essential modification, before they can be made so far comprehensible, by plain juries, as to receive anything approaching a fair and uniform application to cases as they arise. And so long as jury trials continue in civil causes, and we believe that will be as long as our free government continues, it is certainly desirable to make the rules of law so far conform to the practical common sense instincts of men, that juries will be able to understand them, and willing to apply them fairly and fully. Some of the more recent cases seem to us to be approximating a more intelligible and practicable rule in regard to the precise character and extent of misconduct on the part of the plaintiff which shall preclude a recovery by him. In Waite vs. North-Eastern Railway Company, 5 Jur. N. S. 936 (1859), where a child was injured through the joint negligence of the servants of the company, and of those who had charge of the child, it was held there could be no recovery. This judgment was affirmed in Exchequer Chamber; El. Bl. & El. 719; 28 L. J. Q. B. 258. It has been repeatedly decided that it is equally the duty of the plaintiff to exercise watchfulness to escape danger, while going along the highway, that it is for others rightfully in the use of the highway, to avoid inflicting injuries upon those in the highway. And from necessity this watchfulness must be proportioned to the degree of peril known to exist in passing along the highway. Cotton vs. Wood, 8 C. B. N. S. 568; 7 Jur. N. S. 168. The injury must have resulted from the misconduct of defendant or there can be no recovery. In the language of ERLE, Ch. J., in the last case, "There must be evidence of welldefined negligence; that there was some negligence is not sufficient to go to the jury." In cases where the proof of negligence against defendant seems nearly equally balanced, or where it is very slight, it is the duty of the court to direct a verdict for defendant, or to nonsuit the plaintiff. Cornman vs. Eastern Counties Railway Company, 4 H. & N. 787. The greatest advance towards a sound and sensible rule upon this perplexing subject, which we have yet seen, will be found in Scott vs. Dublin and Wicklow Railway Company, 11 Ir. Com. Law. Rep. 377, where it is held, "Nor can he recover, notwithstanding there is negli gence on the part of the defendant, if he has so far contributed to the accident, by the want of ordinary care, that but for that the accident would not have happened; but though a plaintiff has so contributed to the accident, he is not disentitled to recover, if the defendant might by ordinary care have avoided the consequences of the plaintiff's neglect." And it would seem clear that where but for the plaintiff's negligence, at the time, he might have escaped the consequences of the defendant's negligence, he cannot recover. Id. In regard to the distinction where cases of alleged negligence should be submitted to the jury, or decided by the court, see Briggs vs. Taylor, 28 Vt. Rep. 180, and cases cited. If we understand Judge GOULD's opinion, the principal case was decided upon the evidence, as showing, beyond all question, that there was no negligence on the part of defendant, and that the injury resulted solely from the foolhardy and reckless misconduct of the plaintiff. The comments of the judge in regard to the law, which are in the main certainly very sound and just, need not be here reviewed, since it scarcely amounts to the determination of the full Court of Appeals. If so we should hesitate to subscribe to all that is said in regard to the requests of the defendant and the answers of the court below. But with this qualification the opinion is very satisfactory. And the only qualification which we would desire to make in the matter alluded to is, that it seems to us, the discretion allowed the judge at the trial, in regard to his mode of responding to requests of counsel to charge the jury, is too much restricted. It gives the counsel the advantage over the judge, as it seems to us, which is certainly not desirable, since their clients might require them to use it, in a manner not entirely consistent with proper freedom and independence of the court; and, possibly, sometimes, in a way to mislead the jury. I. F. R. In the Court of Appeals of the State of New York. CHARLES CLAFLIN et al. vs. THE FARMERS' AND CITIZENS' BANK OF LONG ISLAND.1 1. An agent of a bank who, in general terms, is authorized by a by-law or otherwise to certify checks drawn upon the bank, cannot certify his own checks when he has no funds to his credit, so as to make the bank liable. The rule of the law of agency is applicable, that an agent cannot put himself in a position of hostility to his principal. 2. A holder who pays value for such a check cannot be said to take it in good faith. The fact that the name of the drawer is identical with that of the certifying agent is sufficient to put him upon inquiry. The holder is bound to ascertain whether the certifying officer is using his official position to perpetrate a fraud. If such is the fact, he cannot recover from the bank. 8. Where a judge, at the circuit, on the ex parte application of a party to an action, irregularly refers a cause to a referee to try the whole issue, and the party who has a right to object proceeds with the trial of the action, produces evidence, and submits the case to the referee without objection, the question of the irregularity of the reference cannot be raised upon an appeal. This action was brought to recover upon three checks drawn upon the defendants' bank and certified as good by their president. Two of the checks, one for $5500 and one for $10,000, were drawn by the president, G. W. Houghton, to the order of Oct. Cleveland, and the other for $5000 by Thomas Green, payable to the order of said Cleveland. The referee finds that the checks were drawn and certified at their date. The president had authority to certify checks upon the defendants' bank, that such checks were certified at his business office in New York, that such fact was not known to the plaintiffs when they received the checks. (The complaint states that the defendants' bank transacted business at Williamsburgh, in the county of Kings.) The referee further finds that the said checks at their date were delivered to the payee thereof, who at the same time paid the drawers the full amount thereof: that the payee of such checks indorsed and transferred 1 We owe this case to the kindness of Smith, J., for which he will accept our thanks.-EDS. |