"Whether or not the plaintiff was guilty of contributory negligence at the time he received the injuries from the defendant’s train of cars, was made a prominent question on the trial.
A careful consideration of all the facts and circumstances disclosed by the evidence in regard to the situation of the plaintiff and the circumstances surrounding him at the time and instant of the ■collision, has lead us to the conclusion that the trial judge committed no error in submitting that question to the jury and in refusing the motion for a new trial. It was for the jury to say what inferences ¡should be drawn from all the evidence bearing upon that question. We think the observations of Judge Woodruff, in Ernst v. The Hudson River Railroad Company (36 How., 91) are applicable to -this case. He says: “ "Whatever I might conclude to be the preponderance of evidence, the case seems to me one in which, upon this ■question, honest, intelligent and impartial men might rationally differ, and if the doubts be such, that such men, acting under a sense of great responsibility, with a single purpose to arrive at the *298truth, may reasonably come to opposite conclusions, then it is proper to submit the question to the jury and a nonsuit should not be ordered by the court.” (See, also, Hackford v. The N. Y. Cent. and H. R. R. R. Co., 53 N. Y., 654; Cordell v. The Same, 70 id., 119 , Massoth v. Del. and Hud. C. Co., 64 id., 524.)
It is difficult to understand from the evidence preceding, w*iat impressions were formed from the surrounding circumstances and the information given to the plaintiff upon his mind at the instant when he was called upon to exert himself for his safety. We think the trial court properly refused to rule as a matter of law that he was negligent. In Wasmer v. The Delaware, Lackawana and Western Railroad Company (80 N. Y.. 218), Judge Eael says, viz.: “ It is easy enough now to see that his effort was a hazardous and unsafe one; but can we say as matter of law that lie, situated just as-he was, with no time for cool reflection, failed in that care which men of ordinary prudence would exercise under the same circumstances ? We think not.” It was said in Hart v. The Hudson River Bridge Company, “ the proofs may be indirect and the evidence-had by showing circumstances from which the inference may reasonably be drawn, that these principal and essential facts existed (that the plaintiff was free from negligence). When, from the circumstances shown, inferences are to be drawn, which are not certain and uncontrovertible, and- may be differently made by different minds, it is for the jury to make them.” (80 N. Y., 622; see, also, Jones v. N. Y. C. and H. R. R. R. Co., 28 Hun, 366.)
We agree with the learned counsel for the appellant “that the plaintiff, because of his great deafness, his great age and his sickness,, owed to himself extraordinary care. We cannot say, that upon the-circumstances before us, as a matter of law, the plaintiff in the exercise of such care did not do just what was, at that instant, understood by him to be prudent and cautious, and ir was for the-jury to say whether or not he neglected any part of that duty which the law imposes upon such a person similarly situated. The law does not require a delay in the efforts to escape unless the exact measure of the danger is ascertained, where the sudden danger results from the negligence of another.” (Coulter v. The American Merchants’ Union Express Company (56 N. Y., 585.) We think there was no error in submitting to the jury whether or not the *299bell was rung or tbe whistle sounded at tbe time tbe accident occurred. Tbe plaintiff testified, viz.: “ Tbe engine was behind the gravel train, I think; I could not see it; I did not bear it ring a bell or sound tbe whistle; I am very certain it did not, or I should have noticed it; the train was coming very fast and as I saw the train I wheeled and swung off from where I was standing.”
Peck testified, viz.: “ I stepped down on the track to see if any were coming and I saw the gravel train; then I stepped back off all the tracks and stood there and they came very swift, and came full speed; they didn’t ring any bell at all; I listened for the bell ^ I always do ; and my hearing was as good as it ever was ; the train was going fast; * * * a man stood right in the middle of the platform ; I did not see him make any motion -to any man to get off the track; nor hear any bell; and I noticed the man that stood there ; and he never started for the back until some one said “ an old man was hurt.”
It is true that considerable evidence was given tending to show that the bell was rung, but we think the evidence which we have quoted was such as to require a submission of that question to the jury. They have found that no bell was rung, and, therefore, we must assume that the plaintiff’s attention was not called or arrested by any such signal, and we are, therefore, of the opinion that no error was committed in submitting the question of whether or not the plaintiff was guilty of contributory negligence to the jury. We may further refer to Kellogg v. New York Central and H. R. R. R. Co. (79 N. Y., 72), and the language used therein, as follows, viz.: “ Under all the circumstances surrounding the accident we think it was for the jury to determine whether he exercised that care which the law required of him.”
Second. We think there was no error in receiving the testimony of Parsons upon the subject of the speed of the train, he said, viz. "r “ I have often rode upon railroad trains ; have observed their speed and timed them by my watch and estimated their speed; I don’t know as I could accurately judge as to the speed of a train; I think I could come pretty close to it, but I would not be certain.”
He was then allowed to state, against the defendant’s objection, “that the train was running from eight to twelve miles per hour.” We think there was no error in this ruling. (Salter v. Utica and *300Black River R. R. Co., 59 N. Y., 631.) In the course of the judge’s charge to the jury he commented upon the question of the defendant’s negligence and referred to it as the first question to be considered, and thereafter followed it with instructions to the question of whether or not the plaintiff was guilty of contributory negligence.
The judge in his charge used the following language, viz.: “ But in case you find the defendant’s agents guilty of negligence whicli caused the injuries, the next question is whether or not the plaintiff is free from negligence which contributed to the injuries.” The defendant took an exception to the words, viz.: “ The next question is whether or not the plaintiff is free from negligence which contributed to the injuries.” We think that exception presents no error. We know of no statute or rule of law which lays down the order to be pursued by a judge in presenting questions of the character involved in this case to the jury. The order in which questions of law should be discussed by a judge, or questions of fact commented upon before a jury, must be controlled by the discretion of the trial judge.
In Ernst v. The Central Railroad (36 How., 85), the trial judge adopted the same order that was pursued in this case, and wé find in the opinion of Judge Clebxe the following, viz.: “ The judge added that if they should come to the conclusion that the defendant was guilty of negligence, then the question would be, was the deceased free from negligence which contributed to the accident.” Other cases might be referred to where the same order was adopted in respect to the questions to.be considered by the jury, as was used in the case before us. We see no ground upon which the verdict can be disturbed by reason of that order which was adopted by the trial judge. The learned 'counsel for the appellant has cited 'no authorities bearing upon the question, and we have found none and recall no precedent which gives sanction to the exception. Several other exceptions are presented in the case before us which have had our attention, and we are of the opinion that they present no error calling for a disturbance of the verdict.
The judgment and order should be affirmed, with costs.
Present — HaediN, P. J., and BoaedMAN, J.; Follett, J., not sitting.Judgment and order affirmed, with costs.