The testimony was very conflicting — that produced on the part of the plaintiff tending to prove that the injury sustained by the plaintiff was the result of gross negligence of the defendant — that produced on the part of the latter tending to prove that such injury was the result of the gross negligence of the plaintiff himself. The court, therefore, properly submitted the evidence to the jury in two aspects of the case — one favorable to the plaintiff, the other to the defendant. In applying the evidence to these aspects it was the province of the jury to determine its weight, and be governed by a just preponderance one way or the other. The court so in substance instructed (320) them, and the plaintiff has no reasonable ground of complaint in that respect.
The plaintiff's counsel insisted that "it was sufficient for plaintiff to show that he was injured by an act of defendant which does not, with the exertion of proper care, ordinarily produce damage. "
If it be granted that this is so, in this case the instruction given was that in effect. The court, putting the plaintiff's view of the case, told the jury in substance that the plaintiff would be entitled to recover if the cars were moving at the rate of speed as contended by him because, in that state of the facts, there was negligence on the part of the defendant.
There was evidence tending to support this view of the case presented to the jury by the court favorable to the defendant, and in view of this evidence it was not erroneous to tell the jury that it would not be negligence to move the cars at a rate of speed not greater than five or six miles an hour. That is not rapid speed — the movement in shifting the cars is short, and at a time when everybody about the cars and track are or ought to be on the alert and careful to keep out of the way of danger.
If the evidence produced by the defendant was true, then, manifestly, there was negligence on the part of the plaintiff, and his misfortune *Page 283 was largely if not wholly attributable to such negligence. The court properly told the jury that if the plaintiff was negligence, as the evidence tended to show, he could not recover.
That the conductor requiring the fireman to work the locomotive, and acted as brakeman himself while shifting the cars, was not necessarily negligence on the part of the defendant. This would depend upon the competency of the fireman and the conductor for such service — they might be well fitted for it, and the court gave the jury proper instructions in this respect.
Taking the charge of the court to the jury altogether we think the plaintiff has no just ground of complaint. In one aspect of the evidence he was grossly negligent himself. The facts were fairly left to the jury, and they found against the plaintiff as they had the (321) authority to do. The judgment must be affirmed.
No error. Affirmed.