their capacity; and the jury must be left to determine the facts, unbiassed by any intimation of the court as to the weight of the evidence.

Evidence as to acts of other boys.

A number of rulings in reference to the admission and rejection of testimony are assigned as erroneous, but it is not deemed necessary to notice any except two. The court, over an objection that the evidence was immaterial, and did not confine the investigation to the occasion of the injury, permitted the defendant to prove that other boys than the plaintiff had been in the habit of jumping on the cars and rocking, and scaring the mules. The objection should have been sustained. The testimony was clearly inadmissible, and was calculated to distract the attention of the jury from the true issues of the case. During the progress of the trial, plaintiff offered in evidence the boot worn by him at the time he was injured, for the purpose, as stated by counsel to the court, of exhibiting the indentations made thereon for the inspection of the jury, as tending to show the carwheel ran over the plaintiff's foot, and that the brake was not applied; there being other evidence before the jury tending to show, when the brakes are applied, a car-wheel will not revolve, but will slide along the ground. The boot and indentations were excluded on an objection for immateriality. In this there was error. Physical facts are always admissible; and, when the object itself can be brought into court and exhibited, it is more satisfactory than a description of it by witnesses that have inspected it outside of court.

Application of brake. Boot in evidence.

For the errors indicated, we think the judgment should be reversed, and the cause remanded.

STAYTON, C. J. Report of commission of appeals examined, their opinion adopted, and the judgment reversed, and cause remanded.

Recovery notwithstanding Contributory Negligence. See generally Zimmerman v. Hannibal, etc., R. Co., 2 Am. & Eng. R. R. Cas. 191; Price v. St. Louis, etc., R. Co., 3 Ib. 365; St. Louis, etc., R. Co. v. Freeman, 4 Ib. 608; Behrens v. Chicago, etc., R. Co., 6 Ib. 222; Rains v. St. Louis, etc., R. Co., 5 Ib. 610; Little Rock, etc., R. Co. v. Pankhurst, 5 Ib. 635; Colorado Cent. R. Co. v. Holmes, 8 Ib. 410; Fowler v. Baltimore, etc., R. Co., 8 Ib, 480; Chicago, etc., R. Co. v. Johnson, 8 Ib. 225; Swigert v. Hannibal, etc., R. Co., 9 Ib. 322; Yarnell v. St. Louis, etc., R. Co., 10 Ib. 726; Louisville, etc., R. Co. v. Fleming, 18 Ib. 347; East Tenn., etc., R. Co. v. Fain, 19 Ib. 102; Schoville v. Hannibal & St. Jo. R. Co., 22 Ib. 534; Ivens v. Cincinnati, etc., R. Co., 23 Ib. 258; Welty v. Indianapolis & V. R. Co., 24 Ib. 371; Rigler v. Railroad Co., 26 Ib. 386; South Covington, etc., R. Co. v. Ware, 27 Ib. 206; Baltimore & O. R. Co. v. Kean, 28 Ib. 250; Lehigh V. R. Co. v. Greiner, 28 Ib. 397; Louisville, etc., R. Co. v. Yniestra, 29 Ib. 297.

DONNELLY

ย

BROOKLYN CITY R. Co.

(New York Court of Appeals, March 13, 1888.)

Street Railroad Person on Track Contributory Negligence. - In an action against a railroad company to recover damages for personal injuries, it appeared that plaintiff, with a companion, drove along an avenue on which there were two railroad tracks, upon which were run trains of cars drawn by dummy engines. The tracks were laid in the middle of the avenue, and there was an ordinary dirt road on either side of sufficient width for the passage of vehicles. Plaintiff and his companion had been on the right-hand railroad track, when, hearing a wagon approaching which they judged to be loaded, plaintiff's companion, who was driving, turned to the left hand, and drove upon the other track. They travelled on that track between 100 and 150 feet when they heard a dummy engine approaching. When they first heard the engine, it was about 75 feet from the place where they were, but they did not see the headlight until it was about 50 feet off. Plaintiff did nothing except sit upon the wagon and shout twice to the engineer to hold up. Held, that plaintiff and his companion were so evidently dilatory in endeavoring to avoid the impending danger, that a nonsuit ought to have been ordered.

EDWARD DONNELLY brought an action against the Brooklyn City Railroad Company, for personal injuries sustained by him while travelling along a street upon which defendant's tracks were laid. There was a verdict and judgment for the plaintiff. The defendant appeals. The opinion states the facts.

Samuel D. Morris for appellant.

Charles J. Patterson for respondent.

Facts.

GRAY, J. — The facts proved on the trial of this action did not warrant the submission of the case to the jury. It was shown on the plaintiff's part that he was chargeable with neglect to act in such manner as to avoid the danger. The plaintiff, with one McNally, had driven in from Fort Hamilton, where they were employed, to the city of Brooklyn, in the evening, in a wagon drawn by one horse, with a load of fish for market. They set out to return about midnight, and took the route of an avenue on which were two tracks of the defendant, upon which were run, either way, trains of cars drawn by dummy engines. These tracks were laid in the middle of the avenue,

1 INJURIES TO TRESPASSER ON TRACK.- - See ante, Kennedy v. Denver, S. P. & P. R. Co., 40, and note 47; Guenther v. St. Louis, I. M. & S. R. Co., 47, and note 55-59.

"

and on either side was an ordinary dirt road of sufficient width for the passage of vehicles. McNally was driving, and plaintiff was sitting by his side. They had been on the right-hand railroad track, when, hearing a wagon approaching which they judged to be loaded, they turned to the left hand, and drove upon the other track used by trains going towards Brooklyn. They had not been long there when they heard and saw coming towards them in the distance a dummy engine. We give the plaintiff's description of how they knew of the approach of the engine. On his direct examination he was asked, after stating how they came to take the other track, and then endeavored to get back on their former track: "Question. How far did he [referring to McNally] "go that way, trying to pull himself out, to the right? Answer. He must have gone somewhere, I think, about 50 feet nearly didn't notice any thing then; I noticed the railroad car when it came pretty near. Q. What did you notice? A. The light of the dummy, the torchlight upon the boiler; whatever you call it. 2. Was your attention attracted to the dummy by hearing it, or seeing it? A. I heard the noise, then watched and saw the light behind the boiler; I first heard the noise. Q. Where did you hear the noise, about? A. Coming over a gutter, — the iron grating in the road, — an iron bridge that covers an opening in the road; that iron bridge is 75 feet from where I was when I first heard it. When I heard that noise, I did nothing; I looked, and saw a light behind the boiler." Plaintiff further testified that he did not see the headlight until it was about 50 feet off, and that it was dim. He said, "When the train was going over that 75 feet, I did nothing except to sit on the wagon and shout twice to the engineer to hold up." Plaintiff thought that the train was going about five miles an hour; though how, upon so dark a night, and as he describes the events, he could form any possible or reliable opinion as to the speed of the train, it is difficult to comprehend. The horse and engine collided; the horse was killed, and plaintiff was thrown out, and received his injuries. The force of the collision was such as to cause the shaft of the wagon to penetrate the engine's water-tank. Plaintiff further, upon his counsel's examination, testified, after saying that no whistle was blown nor bell rung on the train: "Question. When did you listen for it? Answer. The whole way to the city line. I was listening, because I was expecting to meet it somewhere about there, that part." He also says, when he heard the other wagon coming he told McNally he had "better turn "but he does not appear to have made any objection to his turning upon the track on which he tells us "he was expecting to meet" trains. He "was acquainted with that avenue; had been in the habit of going along Third Avenue a good many

years." He "used to drive a car, and knew which track the cars run on in coming to Brooklyn, and was expecting a train along there."

Plaintiff's narrative of what happened, and from which we have extracted the foregoing facts, was corroborated by McNally. From his evidence it appears that he turned out for the wagon, because, from the sound, he judged it to be loaded; that they proceeded on the other road between 100 and 150 feet before his attention was attracted to any engine; that he had gone. so far on the left-hand track because his wheels had got jammed. McNally had been driving over the avenue several times a month for fifteen years. He says, "I knew the train was coming, but I did not expect her at that portion, I did not expect to meet the train there;" and he saw the dummy before he saw any light. They were on a down grade, and turned out for the approaching wagon, because it was usual at that portion of the route to give the right of way to incoming wagons. His excuse for not pulling out upon the side of the road was, that it was a sandy road, and the boughs of the trees would interfere with his load. That load consisted of empty fish-boxes. The tree-branches, he said, arched over the road, but hung lower on the sides.

plaintiff bars

recovery.

With this proof we fail to see that there was any case made out for plaintiff. Reference to defendant's proof only makes it clearer that there was no case made out for submission to the jury. The plaintiff and McNally were Negligence of driving on the tracks, late, upon what they say was a dark night; at a place in the avenue where they knew a train was about due; with space of road on either side of the tracks to drive upon; and they deliberately turned upon the track on which they expected a train to approach. They were both well acquainted with the locality and with the direction taken by trains. The fact that the side of the avenue was sandy or heavy does not furnish a reasonable excuse, for it was a down grade, and their wagon no longer had its load. The low-hanging boughs, even if, as they say, likely to interfere with driving, were preferable as a risk to that of meeting the expected train. After they had gone on the other track, they heard and saw the approaching train, but were evidently dilatory in endeavoring to avoid the impending danger. The conduct of plaintiff and McNally seems strange in view of all the facts, and difficult to account for if they had entire possession of their reasoning faculties.

It is not necessary to hold that the defendant had an exclusive right to the use of the street. It had the paramount right to the use of the street for their corporate purposes. Its tracks were

lawfully there, and to its trains belonged the right of way. It was incumbent upon persons who chose to drive upon the tracks, in preference to using the side of the road, to be cautious, and to exercise ordinary care and prudence. In such respect plaintiff and his companion were lacking, and the want of prudence is especially noticeable in view of the facts and of the knowledge they testified to possessing. We do not think the dimness of the headlight, or the failure to blow a whistle or to ring a bell, under the circumstances, constitutes negligence on the part of the defendant. The headlight was, as a fact, lit, and was seen by plaintiff. We have no proof of any legal requirement under which the bell should be rung or the whistle blown continuously upon night-trips of defendant's engines, and there was no crossing of streets at that part of the avenue to make such an indication of the approach of the engine necessary. Plaintiff, in going upon the railroad track when knowing of the approach of a train, and having notice in addition of its coming a sufficient time to avoid any injury from it, could not, as a matter of law, recover, although the railroad company may have been also negligent, or have neglected some requirement. Where negligence is the issue, it must be an unmixed case. Dascomb v. Railroad Co., 27 Barb. 227. A verdict in favor of the plaintiff would have been set aside as against the evidence, and in such a case it is the duty of the court to nonsuit. Gonzales v. Railroad Co., 38 N. Y. 440; Nuendorff v. Insurance Co., 69 N. Y. 393. We think the plaintiff was chargeable with the neglect of his comrade. He was conscious of the danger, and apparently made no objection or effort to avoid it. He was engaged in a common employment with McNally. He had full control of his own actions, and, though on the safe track, did not object when, after telling McNally to turn out, they turned upon the dangerous track. No decision cited conflicts with our view. The present case differs from that where a person accepts a gratuitous ride, as in the cases of Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228; Masterson v. Railroad Co., 84 N. Y. 247; s. c., 3 Am. & Eng. R. R. Cas. 408.

After a careful consideration of this case, we think, in view of the knowledge possessed by plaintiff, and of his conduct at the time, that there was contributory negligence, and he was not entitled to recover. The judgment should be reversed, and a new trial ordered, costs to abide the event.

Ruger, C. J., Earl and Finch, JJ., concur. Andrews, Danforth, and Peckham, JJ., dissent.