We are asked to set aside a verdict here for $10,000 against this defendant, the justice of which none of us questions, upon what seems to me to be a very trivial and unsubstantial point. The case was fairly tried and carefully presented to the jury in a charge to which no exception was taken. The jury have found upon sufficient evidence that the deceased was killed by the defendant’s negligence, and that he himself was free from contributory negligence. Such a verdict thus reached should not be lightly disturbed. The point, and the sole point worthy of consideration, made by the defendant-appellant in support of its appeal, is that the learned trial justice erred in excluding a contract which it had made, three years before the accident, with a corporation known as the Thirty-fourth Street Railroad Company. This contract on its face was wholly irrelevant to the issues in this action. The deceased was not an employee of this company. He was not driving one of its cars. He had no relation whatever thereto. And yet it is seriously urged that, in an action between his legal representatives and the defendant, the latter had á right to show that this outside company had made a special agreement with it relating to the particular crossing and to the conduct there of its employees.
The defendant’s counsel offered the contract solely upon the question of the defendant’s negligence. . “ It bears,” he said, “ not perhaps upon the negligence of the deceased at this stage, but it certainly does bear upon the negligence of the defendant.” How it *616could possibly bear upon the concrete question of the negligence of the defendant quoad an employee of the Metropolitan Street Railway Company it is difficult to perceive. No connection between that company and the contracting company was shown or suggested. It is true that the defendant’s counsel observed that the instrument offered was “ a contract under which this crossing existed at the time of this accident; ” and he contends that the learned trial justice erred in not divining his meaning, namely, .that the instrument was a contract under which the Metropolitan Street Railway Company’s riyht to cross existed at the time of the accident. But why should the learned judge have inferred anything of the kind from the language which the counsel thus used ? And why should we be asked to reverse the ruling upon so vague a statement and so doubtful an inference ? The learned judge, it seems to me, was clearly justified in thinking that what the learned counsel meant was, not of course that the crossing literally existed as a locality, under the contract —■ which would have been absurd — but that the right of the Thirty-fourth Street Ra/ilroad Company to cross existed thereunder. In other words, that the instrument was the contract which governed the rights of the parties thereto', not, surely, the rights of those who were not parties thereto. If he meant any more, was he not bound tó say so ? If he intended it in some undisclosed way to embrace the Metropolitan Street Railway Company, should he have left that idea to inference? We are sometimes asked to affirm a judgment where an exception is lacking in precision or clearness, but this is the first time that we have ever been asked to reverse a judgment because the trial judge did not see through the obscurity of an appellant’s offer, or divine his real, but inadequately expressed, meaning.
But even if counsel had clearly stated that he intended in some way to connect this apparently irrelevant contract with the Metropolitan Street Railway Company ; even, indeed, if the contract had been directly made with that company, it would still have been plainly inadmissible. It was not claimed that its contents were known to the employees of either company. No presumption could certainly be indulged upon that head. If either company desired to act upon the agreement, the natural way was to make appropriate rules for the government of its employees. Companies do not *617usually furnish their employees with copies of their contracts with each other, or with extracts therefrom. In carrying out such contracts, they ordinarily instruct their employees as to the manner in which their duties are to he performed. No rule was here made; no instruction given ; at least none was proved, offered or suggested. How, then, can it be said that proof of the bare existence of such a contract between the two companies was admissible because its covenants might here have influenced the conduct of the defendant’s employees ?'
But, further, the defendant’s own evidence conclusively shows that its employees could not possibly have been influenced upon the ■occasion in question by knowledge of the contents of this contract. The defendant’s engineer, who actually backed the train upon the deceased’s car, testified that he “ did not see anything of the street car before the collision.” He added that, when he was “ swung up” to stop his train, he did not even know why.he was so swung up. The fact is that he was facing away from the horse car, and that he started his train upon a series of signals. First, the switch-man gave the signal to the conductor; the latter then gave it to the brakeman on the car next to the engine; that brakeman then gave it to the engineer, and then the car was started back. This is the defendant’s own testimony. Its conductor also testified that the train was thus started back on such signals. “ We moved along towards Thirty-fourth street at a very slow pace, between three and four miles an hour, not over that, and we had signals given us by the flagman at Thirty fourth street that everything was all right and to aome ahead.”
Plainly, then, the contract had no influence upon any of the actors upon the scene. Not one of the defendant’s employees intimated that he knew or acted upon it, or was influenced by any of the beliefs or suppositions which it might have suggested. The concrete question was whether the defendant was negligent in proceeding at almost the very moment when it invited the deceased to cross, and to cross freely, in perfect assurance of safety and without cautious inquiry. The evidence was conflicting as to whether or not it did this. It was upon that, and that alone, that the defendant’s negligence was predicated. And in the end, it all came down *618to a question of fact as to whether the last flagman — the man at the Thirty-fourth street crossing — was so guilty. It was he whose original signal set all the succeeding signals in motion. Was he justified in signaling to his co-employees that everything was all right and to come ahead ? There was abundant testimony for the consideration of the jury that this flagman flagged the deceased that all was right and to come on. There was also abundant testimony conflicting therewith. The plaintiff’s witnesses declared that the flagman pointedly beckoned the deceased to cross — thus in-effect telling him that he need not pause, need not look to the right or the left, that all was safe ; while the defendant’s witnesses declared the direct contrary, namely, that the flagman flagged not the deceased, but his own people to come on. The issue was thus distinct and crucial. As the jury believed or disbelieved the witnesses, the verdict must go. To say that upon the precise j>oint thus in issue, upon the only question thus debated—in fact, upon the only question submitted by the court to the jury—the terms of this contract might have affected the conduct of the engineer, who was a mere machine, responding to a series of signals, or of the switchman and brakeman, whose response to the signals was equally automatic — seems like a travesty upon the situation. The contract, in its relation to the immediate and actual incident, is in the air, and the reasoning based thereon seems very much in the clouds. The terra firma issue was whether the original flagman at the crossing was negligent. The learned judge put that single question to the jury. In his charge he says that the plaintiff’s witnesses testified that they saw the flagman beckon Connolly, the deceased, to come on, while the flagman, on the contrary, testified that he signaled Connolly to stop. The learned judge then referred to the probabilities and improbabilities of these respective statements, and left it to the jury to say whether, in fact, the flagman did or did not beckon Connolly to come on. Certainly the contract was not admissible merely to strengthen the credibility of the defendant’s witnesses, and it could, under these circumstances, have had no other office.
The contract, therefore, had no conceivable bearing upon the issues submitted to the jury upon the conflicting testimony. It was' inadmissible in any aspect of its presentation as evidence, and if *619admitted could not possibly — certainly not justly — have affected the result.
The judgment should be affirmed, with costs.
Ingraham, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.