This is an appeal from a judgment in favor of the plaintiff, entered upon a verdict; also, from an order denying a motion for a new trial upon the minutes, etc. The action was for damages in causing the death of plaintiff’s intestate. As to the question of freedom from negligence on the part of the deceased, the evidence was sufficient to warrant submission of this question to the jury. The express wagon was going at quite a fast rate of speed. The time was between sundown and dark, which, considered in connection with the conduct of the driver of the express wagon, and all the circumstances of the case, presented such a case as to justify a jury in inferring that the deceased omitted no precaution which a prudent man should have taken to avoid the accident. While no presumption arises, from the mere fact of injury, that the injured party is free from fault, yet such fact may be established by inferences properly drawn from surrounding facts and circumstances. Galvin v. Mayor, 112 N. Y. 223, 19 N. E. 675. The main difficulty in the case relates to the question whether death was caused by the negligence of the defendant. The evidence established the fact that death was caused by consumption, accelerated by the injury. This question is raised by an exception to the following expression in the charge of the judge, which was duly objected to, to wit:
“I charge you that, if the defendant materially hastened the death of the deceased, that is a cause of death, within the meaning of this statute, which enables the plaintiff to maintain this action.”
In effect, if the. deceased’s life was materially shortened by the negligence of the defendant, the action could be maintained. At *959common law, if a person was killed by another, although about to •die, yet the slayer was held responsible, and there seems no good reason why the same rule should not apply to the statute upon which this is brought. If the deceased’s life was materially shortened by the act of the defendant, then death, at the time it took place, must "be regarded as due to that cause. It is true, the award of damages is more or less speculation, as the jury had to find how long the deceased would have probably lived, in order to estimate the amount of pecuniary loss sustained by the next of kin; but, if the ruling as made by the judge was correct, there was no other thing to do than to furnish the best evidence available, and let the jury determine the result. The plaintiff proved a reasonable basis for the conclusion that death would not have taken place as soon as it did had it not been for the injury received by the intestate. It is true, the intestate had consumption at the time of the accident; but no other cause of death intervened after to cause death, and it is in no wise certain that he might not have recovered from that disease if it had not been for the injury received. With some hesitation, I think the ruling of the judge upon this question was sound. The question of defendant’s.negligence was properly submitted to the jury, and the verdict is supported by the evidence. The evidence was conflicting, and the verdict must be taken as conclusive. The main question in this case, as to cause of death, has not, to my knowledge, been passed upon in this state, and no case has been referred to by either side that has directly passed upon this question. Judgment affirmed, with costs.