Assuming that it was the duty of the defendant, within the principle of Alden v. The New York Central Railroad Company (26 N.Y. Rep., 102), as stated in the opinion of the court below, "to provide a road adapted to the safe passage of the vehicle used over it, a road of continuous, unbroken rails for each and every train to enter upon, in its passage over the road," irrespective of any question of negligence (but as to which it is unnecessary to express an opinion), I am, nevertheless, of opinion, on a careful examination of the testimony in this case, that the plaintiff was properly nonsuited. It was shown by undisputed evidence, of witnesses competent to judge, that the rail in question was, previous to its being broken, a sound rail of the usual and a good size and of good, sound and solid iron, and that the breaks were new and perfectly bright, and no fracture or crack was discovered in the pieces that were broken off, that the end of the rail made a good joint, was perfect, not battered down, and in good order, that the chair was good, that the ties were good, sufficiently thick to support the rail, that there was a sufficient number of them, that they were sufficiently close together to give a good bearing for the rail, that the road was well ballasted with gravel around the ties.
This accident occurred early on the morning of the 5th day of January, 1864, about half a mile west of Brockport, and it was shown that the morning was very cold, that good and perfectly sound rails will break in cold weather when the track is in perfect order, and it was testified, by several witnesses, having experience as engineers on railroads, that they knew of no way of preventing it.
It also appeared by the evidence that a train from the west, called Well's train, going east, came down and stopped at Brockport a few minutes before the train, on which the plaintiff was, went up, and that the two trains met at that place.
The night watchman on that section of the road testified, that he had, on the morning of the accident, left the depot at the Brockport station and went west about three o'clock, that a train *Page 485 followed him west about four o'clock, that he went three miles west and came back over the place of the accident a little before six o'clock; that he went over the track, carrying a lamp with him, to see if every thing was clear, and to see if any rails were broken or misplaced; that he walked in the middle of the track, looking at both tracks, examined the rails and found the track all right; that about an hour after he came down, the Wells' train, before referred to, came down, and there was no time to pass over the road again before the other train went up. The conductor on the Wells' train testified, that he had been engaged on railroads twenty-two years; that his engine and cars were in good order, and that if there had been a rail displaced he would have noticed it by the jolt.
The engineer on that train testified, that he did not notice any jolt; that if a rail had been broken and displaced, he would have noticed the jolt; that there was nothing on the track to prevent his seeing it, and if a rail had been displaced or a piece broken out he would have discovered it; that his train ran about twenty-five miles an hour, and that twenty-five or thirty miles an hour was safe running time.
The engineer of the train going west, and on which the plaintiff was a passenger, testified that he left Rochester about five o'clock in the morning; that the cars were in good order; that he did not discover any break in the rail; that he would detect a broken rail, if displaced in the track; that he did not discover anything wrong in passing over the point where the accident occurred with his engine, and that there was no indication of a broken rail as he passed over that point; that the first notice he had of it was by the ringing of the bell; then, on looking back, he saw that two coaches had gone off the track, and one of them was overturned; that the engine did not leave the track, and that the hind wheel of the baggage car was off; that the train was at the time running twenty or twenty-five miles an hour, not to exceed twenty-five miles.
The conductor of that train stated that he was in the rear *Page 486 car of the train at the time of the accident; he testified that it was running at a rate not exceeding twenty-five miles an hour, and that it was not under full headway; that the engine did not leave the track; that there was no broken rail within three feet of the last car; that when a rail is displaced he can feel the jog.
No testimony was introduced to contradict or impeach the evidence to which I have referred, and after all the testimony was given, the case states that thereupon the counsel for the defendant moved for a nonsuit, "on the ground that there was no proof of negligence or omission of duty, but clear evidence that every precaution to insure safety to passengers had been taken by the defendant. The counsel for the plaintiff then asked to go to the jury upon the question whether the rail was broken before the train going west, upon which the plaintiff was, came upon it. The court refused permission so to do, and the counsel for the plaintiff excepted. The court then, on motion of the counsel for the defendant, nonsuited the plaintiff, and the counsel for plaintiff excepted." The request of the counsel to go to the jury on the single question "whether the rail was broken before the train going west, upon which the plaintiff was, came upon it," concedes all the ground on which the nonsuit was asked, except that. All the evidence bearing on the question negatived that fact. The testimony of the watchman and the engineers justified the conclusion, and none other, that the rail was not broken when the engine of the train in question entered upon and passed over it, and there was nothing shown which would have warranted the jury in finding that it was; and a verdict in favor of the plaintiff on that question would have properly been set aside, as against evidence and without any proof whatever to sustain it.
It follows from these views that the order granting a new trial was erroneous, and must be reversed, with costs, and the defendant is entitled to a judgment on the nonsuit ordered, with costs. *Page 487