Under the motion to set aside the verdict in this case, a new trial is claimed upon two grounds.
1. The defendants insist that there is a fatal variance between the plaintiff’s writ and the proof, inasmuch as the declaration avers that the injury was received when the plaintiff’s vehicle was passing along a public street and highway in said Portland leading from Portland bridge across the railroad track of the defendants into Canal street; and the proof, according to the defendants’ view of it, shows that the injury was received upon private land, rightfully used by trains of the Portland, Saco, & Portsmouth Railroad Co., and while crossing their track, instead of the track of the defendants.
There is no dispute or misunderstanding as to the precise spot on the face of the earth where the accident occurred. It was in the immediate vicinity of the defendants’ depot in Portland, between it and the depot of the P. S. & P. R. R. Co., on a track belonging to and laid down by the latter Railroad Co., for the purpose of making a more convenient connection with the former, in constant and rightful use by both roads for their mutual convenience, and at a point where this track (with several others similarly used) intersects a great thoroughfare, hourly accommodating a large amount of public travel, and leading from Portland Bridge into Canal street.
If it was a misstatement to call this thoroughfare a public street and highway, and this track, which the defendants were rightfully using, the defendants’ track, it is plain that the variance was not such as could mislead the defendants in the preparation of their defense, and it is entitled to nothing more than its legitimate weight as a purely technical objection, unless the case set forth in the declaration and that which was established by the testimony require or ad*128mit different kinds and degrees of proof, and the application of different rules of law. Unless some substantial cause of this sort is found, under our laws which forbid the arrest of judgment for any circumstantial errors or mistakes which by law are amendable when the parties and the case can be rightly understood, a variance between the declaration and the proof will be overlooked after verdict, and a new trial will not be granted on account of it. Such a variance does not seem to constitute any better reason for delaying judgment and putting parties to the inconvenience and expense of a new trial, than it would for finally arresting judgment in the case.
When the occurrence out of which the controversy arises is the same, and the ground upon which damages are claimed is substantially the same, a casual misdescription of the ownership of the track, misleading no one, is simply immaterial. Moreover it can hardly be accounted a misdescription to speak of the track while the defendants were using it, as the defendants’ track. Pro hae vice, it was theirs. They were lawfully using it hy virtue of an understanding with the other corporation, driving them own engine over it with them own servants. Quoad the plaintiff, it is not for them to say the track was not theirs. They were there for the time being with the rights of proprietors, exercising the same powers, subject to the same duties and liabilities, so far as the public were concerned, neither more nor less. But, say the defendants, it 'was not a public street and highway. The assertion is based upon an alleged failure to show a legal location. But the establishment of a legal location is not the only mode of proving the existence of a public street and highway. Evidence of a long-continued uninterrupted ' public use, is properly received to establish the existence of a highway by dedication.
The testimony here shows, that for some twelve or fourteen years previous to the trial, this street has been openly and publicly used by any one who chose to go there. There was no testimony tending to show that the proprietors of the land had ever made any objection to the public use of it as a highway, or that the defend*129ants liad done so, though they had been running their cars over the tracks of the P. S. & P. Railroad there, under an agreement with the latter company, for some years previous to the accident. Mr. Barrett, an officer of the P. S. & P. Railroad, a witness for the defendants, testifies that the street has been used by the public generally ; that it is a great thoroughfare; that the travel to Portland bridge has increased since the bridge was lowered to the grade of the railroad; and that he knows of no objection ever being made by that corporation, which owns the tracks and the right of way for railroad travel there, and has put up the sign-board required by the statute, and established a flag station such as is customary at the crossing of highways which are greatly frequented.
Here was ample evidence from which a dedication by all parties having any right or interest in the land there, or any easement liable to be interrupted by the establishment of a highway, might be inferred.
If, as between these parties, any evidence of assent to the dedication is requisite in order to make the description of this thoroughfare as a public street and highway strictly correct, there are the same indicia of assent which were held sufficient in Hobbs v. Lowell, 19 Pick. 410 to charge the city with liability for non-repair in a suit for damages alleged to have been suffered by reason of a defect in a highway.
In view of the foregoing testimony, it cannot be said that the verdict is against evidence upon this point, or that there is any variance herein between the declaration and the proof.
And even if the evidence fell short of establishing a highway de jure, we think that upon the issue presented by these pleadings and upon the state of facts exhibited by this report, a variance in this particular would be an immaterial one, not affecting the rights of the parties or the rules of law or evidence applicable in the trial of the cause, or the inferences to be drawn from the testimony, in-any manner. Here was an avenue through which poured the whole tide of travel into and out of the city in that direction, affording the most direct route to the defendants’ freight depot and grounds; *130used and recognized by all and sundry, as a highway for years before the defendants began to run over the track of the P. S. & P. Railroad located there. We think that the instructions given by the presiding judge with regard to the effect of a finding by the jury that there had been and was a thoroughfare there, in open and continuous use by the public and all who had occasion to go there, without objection made by the owners of the fee, or by .the P. S. & P. Railroad Co., which had an easement there, or by the defendants, were strictly correct, and that it was not for .the defendants to say in this action that there was no highway there, if there was a crossing which they and all others interested permitted the public to use as such, and which was, in fact, in great and constant use. Under such circumstances, the plaintiff would be there with the rights of a traveler on a highway, and as regarded him and all others traveling there, the defendants would be subject to the same duties and liabilities as if the street had been a highway de jure as well as defacto. As regards the issue which these parties were litigating then, a variance of this description, were its existence demonstrated, would be immaterial. The defendants, upon this point, rely upon the case of Shaw v. Boston & Worcester R. R. Corp., 8 Gray, 45. We do not question the correctness of that decision, as to the materiality of the variance in that case. The variance between the declaration and the proof, as to the place of the accident, changing it from the highway to a point without the limits of the highway, on the defendants’ grounds, would necessarily change the whole course of inquiry, and affect all the inferences to be drawn as to the suitableness of the horse, the degree of skill and care in driving exercised by the plaintiff, and other matters vital to the plaintiff’s suit. The reasons assigned for holding the variance to be in that case radical and essential, do not exist here. It mattered not (if the plaintiff was at the place of the accident with the rights of a traveler on a highway, and the defendants were there, subject to the duties and liabilities of a railroad crossing a highway at grade, as was assuredly the case upon the testimony adduced here), whether there was or was not error in the *131proceedings of the county commissioners, a dozen or fifteen years before. When all parties were proceeding upon the hypothesis that there was no error, it would not change the relations of the parties in this suit to each other, should it be found that all were mistaken in that particular.
2. In connection with this part of the case we will consider the exception taken to the refusal to give the second and third requested instructions.
We fail to perceive the propriety of these requests. The two propositions are manifestly inconsistent with each other, and if the first is correct, as we think it is, the other is clearly unsound. Granted that it would not be competent for the owners of the fee to create a highway by dedication, where it would interrupt the previously acquired right of the railroad to run their trains without being subject to the delays and precautions incident and necessary to crossing a highway at grade, it necessarily follows, that the railroad company would have the right to object to any such interruption of their easement if it were attempted. The instruction given, required the jury to find the assent of the proprietors, both of the fee and the easement, and were correct, and embraced, by necessary implication, all the sound law to be found in either of the requests which were refused.
3. Complaint is made of the instruction requiring the jury to determine upon all the evidence in the case, whether the plaintiff’s intestate was or was not in the exercise of ordinary care. It is claimed that that question where the facts relating to it are admitted or undisputed, is one of law and not of fact. The contrary doctrine was maintained in Patterson v. Wallace, 28 Eng, Law and Eq. 48, where although there was no controversy about the facts, and the only question was whether a certain result was to be attributed to negligence on the one side or rashness on the other, the judgment of the court below was reversed because the judge had withdrawn the case from the jury, and it was held in the House of Lords to be a pure question of fact for the jury.
But if it be conceded that cases may arise where some unques*132tioned fact may afford such conclusive proof of negligence on the part of the plaintiff as would preclude him from recovering and justify a direct ruling to that effect, a glance at the testimony here will suffice to show that this is not one of them.
There were several railroad tracks in close proximity. Webb’s precise position with regard to the approaching engine; his actual distance from the track on which the accident occurred when he started; the length of time he had been waiting for the other train to pass, and the time required for him to cross the defendants’ track; the degree of speed with which the defendants’ engine approached the crossing, and, more than all, the possibility or impossibility of Webb’s seeing the smoke-stack of defendants’ engine over the other moving train if he had looked in that direction, — all matters, having an important bearing upon the question of negligence, were left too uncertain by the testimony to form the basis of a peremptory ruling upon that' question as a matter of law. It was necessary that the jury should pass upon it as a mixed question of law and fact under proper instructions. The counsel for the defendants now complain that such instructions were not given. The exceptions do not show what instructions were given upon this part of the case, nor do they purport to contain all that were in fact given. The presumption is that they were correct. The defendants’ counsel seem to have rested satisfied with, them at the time, for they requested nothing more definite, as they should have done if they desired rulings applicable to particular hypotheses or contingencies which the judge was omitting to notice.
4. .The alleged want of ordinary care on the part of the plaintiff is also relied on in support of the motion to set aside the verdict, forming the second ground on which it is claimed that the motion should be sustained. We are by no means satisfied that the jury erred here, — still less that them decision was so clearly wrong as to justify us in sustaining the defendants’ motion.
The injured man was not present to testify to what he did or omitted to do in the way of precaution. What he might have done and did do is matter of inference merely, to be reached by a com*133parison of the not very precise and definite statements of by-standers occupying different points of view. Bailey, the defendants’ station agent, says he stood by the side of Thompson, the flagman, and not many feet from Webb, and that he saw the smoke-stack of the approaching engine over the intervening freight-train, and he or some one hallooed a warning to Webb, and he sees no reason why Webb could not see the approach of the engine as well as himself. But he says it was after Webb had started and got the length of his horses that he himself saw it; so that the warning was too late to be effective. On the other hand Thompson, the flagman of the P. S. & P. Railroad, who was apparently nearer to Webb than Bailey, testifies that he could see a little further down the track than Webb could; that the P. S. & P. freight train prevented them from seeing defendants’ engine ; that neither he nor Webb could see it when Webb started; that he did not see it until Webb was half way across the track. We must remember that Webb’s horses, being used to haul goods, to and from the depot, were accustomed to see the cars in motion; that they were standing in close proximity to the train which was moving down the other track; that Webb had waited at the flagman’s signal until that train was clear of the crossing; that he had no load, and that he was nearly across the track when the collision occurred, the engine striking the hind-wheel of his vehicle; that the defendants’ engine had just before been moving in the opposite direction, so that its return to the crossing was unexpected. We cannot say that’we see conclusive evidence of a want of ordinary care in his attempt to cross when the flagman of the other road drew in his flag after the passage of his train. The flagman, though employed by the other road, was accustomed to flag the defendants’ engine at this crossing, as a matter of accommodation, but did not flag this one because he did not see it nor suppose it was coming until too late to prevent the accident.
5. The defendants do not contend in argument here that the verdict was against the evidence on any other point except those which we have considered, nor that there was not negligence in the man*134agement of their train, the engineer in charge testifying that he did not see Webb’s team until the engine was within ten feet of him, and that the brakeman who was looking out on the side from which Webb was approaching, gave him (the engineer) no notice; but they complain that it was left as a question of fact for the jury to determine whether the defendants were guilty of negligence in not employing a flagman and having their engine flagged at the crossing.
If the jury decided the question correctly as we think they did (looking at all the evidence touching the situation of this crossing and the use made of it both by the public and the railroad companies), the defendants ought not to complain because the point was not ruled peremptorily against them.
But the defendants claim that whether there was negligence in this omission was a pure legal question, and should have been ruled in their favor; because they say that the duties and liabilities of railroad corporations at public and private crossings are prescribed and regulated by R. S., c. 51, §§ 15 and 19. But the legislature do not undertake to define or point out all the precautions which reasonable and ordinary care may require a railroad company to observe in crossing a crowded throughfare leading into a city.
A proper regard for the security of human life imperatively requires them to make use of other and greater safeguards in such a locality than those which the legislature have deemed sufficient for ways in general, many of -which are little frequented.
In the language of the court in Bradley v. Boston & Maine R. R. Co., 2 Cush. 539: “ The statute makes certain positive regulations, and the defendants, at their peril, are bound to comply with them; but there are no negative words, and there is no implication that a compliance was to absolve them from any duty which they were under before; and, therefore, if other precautions were necessary, the defendants were still bound to take them.”
' And in the same case it was held, that the question of negligence in these respects was one of fact, to be submitted to the jury, under all the circumstances of the case, and to be determined by them *135upon tlieir view of what skill and prudence and reasonable care and diligence require.
And in Shaw v. Boston Worcester R. R. Corp. ubi supra, it was decided that the record of tlie county commissioners, stating that in their opinion no flagman was necessary at the crossing, was not competent to show due care on the part of the company, when that precaution had been omitted.
Judge Redfield, in his treatise on the Law of Railways, vol. 1, p. 547, in notis, after stating a Massachusetts decision, to the effect that it is not competent for the judge to lay down any definite rule as to the duty of the company in regard to proper precautions in crossing highways, that the circumstances attending such crossings are so infinitely diversified, that it must be left to the jury to determine what is proper care and diligence in such case, remarks as follows: “ This, we apprehend, is the true rule upon that subject, both as to the company, and travelers upon the highway, and that it will finally prevail, notwithstanding occasional attempts to simplify the matter by definitions.”
6. The defendants insist that any instruction authorizing or permitting the jury to find them guilty of negligence, in not having their engine flagged at the crossing, even if tenable as against the P. S. & P. Railroad, who had employed a flagman, and kept up a flag station, and thereby perhaps induced Webb to rely upon the flag, and to he misled by the omission of the warning, is not tenable as against these defendants, because they never employed a flagman. This argument assumes that the P. S. & P. R. R. Co. could bo’held liable for the omission only .on the ground of their having misled the party injured, by their previous practice ; but we think that upon the evidence in the case, the jury would be amply justified in finding that the omission of some such precaution in such a locality, is proof of a want of ordinary care, without regard to the previous practice of the corporation.
And we are clear that a railroad company, when using the track and easement of another similar corporation for the purpose of running their own engine and cars, with their own employees, must *136be held to observe such precautions for the safety of the public at a crossing, as shall be fully equivalent to those which are required in the exercise of reasonable care and prudence at the hands of the corporation whose road they are using. An omission which would constitute actionable negligence' in the proprietor of the track, is equally culpable in any party that, is using the track for the same purpose. If they choose to omit such reasonable precautions, they assume the risk, and must abide the consequences of so doing.
7. Finally, it is claimed that the employment of a flagman, to give warning of approaching trains, was an assertion of the paramount right of the railro&d, and that it was misconstrued by the presiding judge into a fact, from which the jury might infer an assent on the part of the railroad company, to the dedication and use of the land as a highway. We do not see any error in the use which the jury were allowed to make of the fact. The establishment of a flag station cannot reasonably be construed as an assertion of a paramount right on the part of the railroad company.
On the contrary, it is the well-known and well-understood safeguard adopted by prudent and properly conducted railroad corporations, at the crossings of recognized highways which are much frequented, and the exhibition of the flag is but a notice that they are about to exercise the common privilege.
Upon the whole, we do not see that either law or justice requires us to send this case to a new trial.
Motion and exceptions overruled.
Appleton, C. J.; Cutting, Dickerson, Danforth, and Tapley, JJ., concurred.