Plaintiff had a verdict for injuries sustained at a highway crossing of defendant in North Berwick. We are asked to set it aside as against evidence.
*405At the place of the accident there were six tracks, where trains were made up. It was broad daylight. A freight train had crossed the highway, and stopped within twenty or thirty feet of the crossing on • the northerly track, the locomotive heading towards the highway. The conductor left his cab and went to the rear of the train to unshackle a car. Plaintiff was approaching from the southerly side, in plain sight of the train, but was not seen by the engineer till his horse’s head was “right out by the forward end of the engine,” when he put on the brake. The engineer was on the side of the engine farthest from the plaintiff as he approached, and when seen by him, the horse must have been well over the crossing.
The engineer says that when he had passed the crossing to leave a car, he stopped the locomotive, and immediately started forward toward the crossing. Plaintiff says it stopped a minute or so while a car was unshackled, and as he was about crossing, the engine started without warning — the trainmen say the bell was rung. The planking at the crossing was seventeen to nineteen feet wide. The engineer says the engine was stopped when it had lapped on the planking about two feet — plaintiff -says it did not stop till it had entirely passed the planking. His horse was not afraid of locomotives; neither horse nor wagon was struck. Apparently the accident happened by the horse swerving away from the locomotive, beyond the planking, and the carriage wheel cramping on the rail and throwing plaintiff out. The horse and carriage passed over the track clear of the locomotive. Defendant claims that plaintiff-was negligent in attempting to cross the track when he did; while plaintiff claims that the locomotive being stationary he had a right to cross, and that the engineer should not have started while he was on, or evidently attempting to pass over, the crossing.
If plaintiff was seen by the engineer in his attempt to cross (and it is • difficult to see why he was not) and while the engine was stationary, it would be a fault to start it, even if the plaintiff was negligent in making his attempt. If thus stationary, it is claimed plaintiff was justified in believing that it would not start while he was passing, he being then in close proximity to the crossing.
The rule that a rapidly moving train has precedence, at a ci-oss*406ing, over the traveler oil a highway, does not apply to stationary trains. As to these, neither has precedence, but each should act with due regard to the other, the right of passage being equal to each.
All these questions were submitted to the jury, under instructions not excepted to, and they have found the defendants guilty of negligence, and that the plaintiff was not guilty.
It may be that the court would have arrived at a different conclusion, if called upon to pass upon the facts. But the constitutional tribunal for the determination of facts having found the issues in favor of the plaintiff, and there being no suggestion of bias or undue influence on their part, and the evidence being such that different minds might reach different conclusions, we do not feel authorized to disturb the verdict.
Motion overruled.