To the charge delivered to the jury by the learned trial judge no exception was taken.
In the course of the charge the trial judge observed to the jury: “ You have the testimony with regard to the agency of this witness Sayre. He was delegated by the young man whose death was caused, as well as by his companion — they were jointly interested— delegated by him to go and watch and listen and look for the approaching train. Now, gentlemen, if he was guilty of negligence on his part, then his negligence is attributable to the young man in question, and the plaintiff cannot recover. Sayre was the agent entrusted with this duty, and the young man must bear the burden of his faithfulness or his neglect. And. in this connection I will say that you should have a well-defined idea as to why this headlight upon the moving and approaching locomotive was not observed; not something vague and indistinct, but a well-defined idea as to why it should have escaped observation at that time. In considering this question of contributory negligence, you should take into consideration all the circumstances of the case surrounding that locality.” Later on, and near the close of the charge, the trial judge said : “ Your next question will be, was the young man who died gndty of contributory negligence ? ”
Hpon a careful examination of the evidence we find that a sharp conflict was presented upon the two leading questions of fact that were considered at the trial. To sustain the charge of negligence on the part of the defendant, there was the fact that the train was moving, as the engineer testifies, at the rate of about sixty miles an hour, and there was some evidence that the bell was not rung or the whistle sounded as it approached the highway crossing. On the other hand, there was positive evidence that the bell was rung, given by the engineer and the fireman, and other circumstances tending to contradict the evidence of the plaintiff introduced for the purpose of establishing negligence on the part of the defendant.
(2) There was no direct and positive evidence to indicate that the deceased was free from contributory negligence. The facts and cir-cu instances of the accident, coupled with the testimony of Sayre, were relied upon to justify the jury in inferring that the deceased was free from contributory negligence. The case in behalf of the *265plaintiff in that regard is so slender and slight that we are of the opinion that the jury may have found upon the evidence that the plaintiff had not borne the burden which required him to establish that the deceased was free from contributory negligence.
The learned counsel for the plaintiff contends that the court has the power to set aside the verdict though no exception was taken to what he claims to be the erroneous portion of the charge, and that it was the duty of the court so to do. He calls our attention to several cases bearing upon that contention.
In Benedict v. Johnson (2 Lans. 94) it was said that a verdict improperly influenced by misdirection of the judge will be set aside upon a case made, although no exceptions have been taken. That decision was made upon a case made and heard at Special Term and not upon a motion for a new trial made upon the minutes. In that case the court, at Special Term, had exercised its discretion and granted a new trial upon the payment by the defendant of the costs of the former trial.
In Wheeler v. Sweet (137 N. Y. 435) it was held that instructions by the trial court, in the absence of the plaintiffs and their counsel, which were erroneous and adverse to the plaintiffs upon a material point, might be made the foundation for setting aside the verdict without an exception being taken to such instructions.
In Mandeville v. Marvin (30 Hun, 283) the report of a referee was set aside by the General Term, although the party aggrieved had failed to present a proper exception for correcting the error or mistake which was made by the referee, and it was said in that case that the error was “ so grievous to the defendant, and the injustice which. Avould be done, if the judgment were allowed to stand, Avas so great that the judgment should be reversed, although no specific exceptions to the error committed by the referee had been taken.”
In Schwinger v. Raymond (105 N. Y. 648) it was said that the General Term has power to set aside a verdict as contrary to evidence, although that power was not possessed by the Court of Appeals.
In The Panama R. R. Co. v. Charlier (27 N. Y. St. Repr. 381) it was said that a misdirection by the court upon a material point, *266although not excepted to by the defendant, may be made by him the foundation for a motion for a new trial.
In Whittaker v. D. & H. C. Co. (49 Hun, 400) the rule was stated, and it was held in that case that, “ When a case has been submitted at Circuit to a jury, upon a theory which is wholly erroneous, the General Term has power, and it is its duty to grant a new trial because of the erroneous instruction, although an exception was not taken thereto.”
Our attention is also called to Gowdey v. Robbins (3 App. Div. 353). In that case a promissory note was presented as a defense which it was claimed had been altered, and in the course of the charge the judge instructed the jury that the burden was upon the plaintiff of “ showing that that note is other than what it purports to be, or than what the defendant says it is; ” whereas, in the opinion of the court, the instruction should have been “ the burden was upon the defendant of showing that the alteration had been made before the note was signed.” For that grave misdirection a new trial was ordered, although an exception had not been taken, upon payment of the costs of the trial and the costs of the appeal, the court saying that a new trial should be granted under “ the unusual circumstances presented here.” (See Sorensen v. Balaban, 11 App. Div. 164.)
Upon a careful examination of the evidence in this ease we cannot say that the instructions given by the trial judge were erroneous, or that they led to an improper verdict. As already intimated, there was a conflict in the evidence upon the question of whether the defendant was guilty of negligence, and there was no direct evidence showing that the intestate was free from contributory negligence, and the evidence given at the trial indicated that he relied upon the observations made by Sayre at the time he consented to advance across the tracks of the defendant. And there is no evidence that the intestate looked, listened or used any diligence to apprehend the approach of the train which was visible, if there had been a proper exercise of vigilance, before attempting to cross track No. 1.
We think the order granting a new trial should be reversed, and the motion for a new trial denied.
All concurred, except Ward, J., who concurred in the result.