ways along the track; he listened; he heard and saw nothing. It is not the province of this Court, in my opinion, or of the trial court, to pass upon the truth or falsity of the testimony of a witness in a case at law. The credibility and the weight of testimony is for the jury. If there is absolutely no evidence tending to show a fact to be determined, or the uncontradicted and undisputed testimony establishes such fact beyond cavil or question, then the court may so instruct the jury; but if there is evidence to consider, and such evidence is to be questioned, then a jury must deal with it, and decide upon it. It is argued that the plaintiff, under the circumstances, must have seen the head-light of the locomotive, if he looked at all; or that, if he did look, he did not stop in the right place to look, or did not take pains to lift his head sufficiently high to raise his vision above the board fence; and that an ordinarily prudent man, if in a place where his vision was obscured by the post at the corner of the fence, would have leaned sufficiently forward or backward to have gained an unobstructed view, or would have glanced between the boards. The main argument, however, is directed against the truth of the plaintiff's statement that he stopped and looked. As already shown, this cannot be considered here. And I do not think that a man must strain his eyes for a mile or so before he reaches a railroad track for sight of a headlight, or keep his mind or ears for that distance directed towards a possible approaching train. It is enough if the thought and caution comes to the mind before the track is attempted to be crossed, and time is taken to look and listen. This was a freight train. Unlike a regular passenger train, its goings and comings were not familiar to the plaintiff, nor was the time of its crossing at all uniform. Within a few feet, about 30, he stopped, and looked and listened. He stopped long enough to hear, but heard no bell or whistle. He saw nothing. It was not necessary that he should stand up in his sleigh; probably not one man in a hundred would have done so. The very fact that he knew the crossing and its surroundings well would have a tendency, when he glanced down the track and saw nothing, to disarm any suspicion that the fence or anything else was obstructing his vision; and the fact that he heard no bell, whistle, or other sound of an approaching train, and not knowing that any was due, would still further lull him into security, and prevent him from moving on or backward in order to get a better view. When this train gave no warning of its approach, save the noise of its travel, in a windy night, I am not prepared to hold as an inevitable conclusion that the plaintiff was negligent in not perceiving that the fence was obstructing his sight, or in not choosing a different stopping place, or in not looking before he did, or in not standing up in his sleigh. That seems to me to be a most proper subject for a jury to dispose of. One thing is certain, if he tells the truth,-it would have been much safer for the plaintiff if he had not stopped and looked at all. In that case, he would, as it turned out, have made the crossing before the train reached it. He took the precaution the law required, if his testimony is to be believed. Having never seen the plaintiff on the stand as a witness, or the scene of the accident, I shall not here determine that he has committed perjury, nor shall I hold him responsible for not taking precautions that would not ordinarily have been suggested to a prudent and careful man, although it now appears that such precautions would have prevented the injury. The defendant, upon this record, was grossly negligent, and yet seeks to defeat the plaintiff because he did not take extra precautions. The case should have been submitted to the jury. SHERWOOD, J., concurred with MORSE, J. INDEX. References are to pages. Where there are several notes on a ABATEMENT. 1. An assignment by a vendee for the benefit of creditors will 2. Plea in is inadmissible in bastardy proceedings after the 3. The abatement as to one party of a suit against all of the 4. Suit in justice's court abates on failure of justice to wait the 1. The design to kill the assured must have existed at time fatal 2. A clause in a policy requiring direct and positive proof that ACCOUNT-BOOKS. Proof of contents admissible on failure to produce after due ACQUIESCENCE. The acquiescence by the trustees and officers and members of a ACQUIESCENCE-Continued. of corporate business transacted, deprived the association of ADJOURNMENT. Of a suit by a justice, without a showing on oath, operates as a ADULTERY-See EVIDENCE (1, 2). ADVERSE POSSESSION. 1. For twenty-five years by lot-owner, and those through whom 2. When one enters upon land under color of title and with 3. It is not necessary that the occupation of land should be such AFFIDAVIT FOR ATTACHMENT. 1. Must show that it is made by the plaintiff, or some person in 2. Must be filed with justice before writ issues, and if not, or if 3. Failing to identify the plaintiffs is void. 74 (1). 4. In justice's court, need not be annexed to the writ. Id. (2). AFFIDAVIT OF PUBLICATION. 1. Purporting to be made by "book-keeper" is not authorized by 2. If it purports to be made on the knowledge of affiant, it is suf- 3. The objection that notice of hearing of a guardian's petition AFFIDAVIT OF PUBLICATION-Continued. of its publication is received in evidence without objection on 5. An affidavit averring due publication of a probate order once 6 How. Stat. § 7497, does not require that the notice referred to AMENDMENT. A declaration misdescribing the land upon which a highway was See CONSTITUTIONAL LAW (4); PLEADING (2). ANIMAL-See NEGLIGENCE (6-8). APPEARANCE. Defendant in bastardy case must appear personally in circuit APPLICATION-See LIFE INSURANCE. ARTIST'S COMPENSATION. 1. The compensation of an artist is not generally measured by |