When this ease was before this court on demurrer, (67 Maine, 100) it was decided that the allegations in the original declaration relating to the plaintiff’s attempt to pass over the crossing before the approaching passenger train would not, if proved, sustain the action ; for the reason that, instead of showing the exercise of ordinary care which the law required of him, they disclosed culpable negligence, which must preclude a recovery.
Omitting the preliminary averments, which placed the plaintiff with Ins horse and lumber wagon about seven rods from the crossing and the train in plain sight, seen by him to be approaching some thirty-eight rods distant, the material allegation is that he “ urged his said horse forward, and used his utmost exertions to get his said team over said crossing before said train should arrive at the same,” etc. In the amended count, instead of the averment that he “ urged his horse forward,” he has substituted the allegation that he “ allowed him to dash forward without check.” And the allegation that he could secure his safety in no other way, and that he believed it would be impossible to control his horse are not materially different, in a legal sense. There is no allegation that he attempted to stop his horse or to alight from his wagon. Moreover the plaintiff’s own testimony is in accord with his allegations. He admits that he saw the train coming when he was one hundred feet from the crossing. To be sure, he says “ his horse made a leap into a dead run,” and does not pretend that he attempted to stop him, but says repeatedly that he does not know whether lie did or not. But he does testify that he did not attempt to turn around and did not even look at the train after he first saw it.
The presiding justice might well rule, as he did, that there was no material difference, in a legal sense, between the averments in the original and amended counts upon the matter of care on the part of the plaintiff, and that the decision on the demurrer was decisive on this branch of the case.
*416That instruction being correct, the requested instructions became immaterial.
It is contended that the presiding justice “ expressed an opinion upon an issue of fact arising in the case,” and that the plaintiff, “ being aggrieved thereby,” is entitled to a new trial, in accordance with the provisions of St. 1874, c. 212. The expression of opinion was in the charge. The judge, in illustrating a principle of law, said that, so far as he recollected the testimony, “ the plaintiff saw the engineer as soon as the engineer saw him.” But a mistake of this kind is not such an expression of opinion upon an issue of fact as is contemplated by the statute. It the judge inadvertently misstate a fact, the counsel should at the time call his attention to it, that it may then and there be corrected by reference to the reporter, if necessary. Bradstreet v. Bradstreet, 64 Maine, 204. State v. Reed, 62 Maine, 128, 137.
The remaining question was whether, notwithstanding the plaintiff’s negligence, the defendants were still liable, for the alleged reason that their engineer, after seeing the actual condition in which he then was, instead of checking the speed of the train, ran recklessly on and thereby caused the injury. In submitting this question to the jury, the presiding justice withdrew from them all consideration of the want of statute signals, as having no tendency to sustain or disprove this issue. We perceive no error in this ruling of which the plaintiff can complain. We take it for granted that other appropriale instructions were given upon this question ; and to those no objection has been made.
The jury found that the defendants were not guilty. We do hot readily perceive how they could find otherwise. The testimony of the plaintiff is quite inconsistent with itself.
He testified in substance that the usual gait of his horse, when harnessed to that wagon, was “ six or seven miles an hour ; ” that when he entered the lane he “ trotted along at an ordinary trot, about the same gait he ordinarily went; ” that his horse became frightened, “ made a leap into a dead run,” and that he “ let the horse go.” This testimony he gave to satisfy the jury of the truth of his allegations : that his horse, “ being thrown into a sudden fright by the said train which was approaching almost in his *417rear, was allowed to dash forward without check,” etc., and that he “ used his utmost exertions to get his said team over said crossing before said train should arrive at the same.” And yet he also testified that, by actual measurement, the train was thirty-eight rods distant and he only one hundred feet, when his horse took fright and ran. In other words, the train ran six hundred and twenty-seven feet to his one hundred, or six and twenty-seven hundredths faster. So that, taking it for granted that ihe speed of the train was, as contended by the plaintiff’s counsel, forty miles per hour, the plaintiff’s team went 40 divided by 6.27, equal to 6.37 miles per hour, its usual, ordinary rate of speed. And this demonstrated fact corresponds with the testimony of the engine driver.
Motions and exceptions overruled.
Appleton, C. J., Walton and Libbey, <JJ., concurred. Harrows, J., concurred in the result.