The opinion of the court was delivered, May 11th 1869, by
Williams, J.There are ten specifications of error in this case, nine of which relate to the charge of the court, and one to the admission of the testimony of Harrison Beitler, to prove the marriage of the plaintiff below with the deceased. The testimony of Beitler, showing that the parties lived together as man and wife, and that they were treated and recognised as such by the neighbors, was properly received. Marriage is regarded in this state as a civil contract, and is provable in all civil actions by cohabitation, reputation, acknowledgment of the parties, reception of the family, and any other circumstances from which it may be inferred.
The charge, which is the basis of the other assignments, is not properly on the record. Ho exception was taken to it, nor was the court asked to reduce it to writing, and file it at the time of the trial. It was filed, as the presiding judge certifies, at the request of counsel of the defendants below, made more than seven months after the verdict was rendered, and a month after judgment was entered thereon, and without any bill of exceptions being sealed thereto. As the charge has not been brought upon the record in either of the modes provided by law, Wheeler v. Winn, 3 P. F. Smith 122, it is not properly before us, and this would be a sufficient reason for disregarding the assignments of error and affirming the judgment. But if it had been made part of the record, no sufficient grounds have been shown for a reversal of the judgment. On the trial, the counsel of the railroad *367company submitted a number of points, all of which the court affirmed, and in the general charge laid down the law in strict accordance with the principles stated in the points, and submitted the question arising thereon under the evidence, with great fairness and impartiality, to the jury. Under the instruction of the court the jury found that the deceased was killed on the street, while lawfully crossing the railroad, and that his death was the result of carelessness on the part of the company’s agents in charge of the train, without concurrent negligence on his part. The company now complains that the court erred in submitting these questions to the jury, and insists that it ought to have instructed them, that there was no proof that the deceased conducted himself with ordinary care in crossing the railroad, and no evidence that would warrant the inference that his own negligence did not contribute to his death; and that in the absence of affirmative proof of the exercise of proper care on his part, the plaintiff below was not entitled to recover. But the court was not asked to withdraw the case from the jury by a binding direction that there could be no recovery under the evidence, and it would have been error to have given any such instruction if the request had been made.
The evidence showed that the railroad crossed Linden street near its intersection with Front street, with a double track; that the deceased was last seen alive coming down Front, some distance above Linden street; that he was found dead on the railroad, lying between the rails of the eastern track about fifty feet above Linden street; and that there were marks of blood on the outside or the eastern rail at the crossing on Linden street. The accident occurred between 7 and 8 o’clock in the evening, and the night was dark. Two coal-trains belonging to the company, one coming down, and the other going up, passed each other a square or two below Linden street; the down train had a head light, the up train, by which the deceased was killed, had no head light, and gave no warning of its approach by bell, whistle or other signal, as it passed through the town. It was running at the usual rate of speed, and must have reached the Linden street crossing just after the down train had passed over it.
Under the evidence, it is clear that the case could not have been withdrawn from the jury. It was their province to deal with the facts, and to draw from them the proper conclusions. The court could not assume that the deceased was a trespasser on the railroad, and had no right to be where he was at the time he was struck by the passing train. Nor could it assume that his own negligence contributed to his death, and that it was not occasioned by the negligence alone of the company’s agents in charge of the train. If there were blood marks on the rail on Linden street, might not the jury properly infer that the deceased was killed *368while crossing the railroad at that place, and as it was a public street, that he was rightfully there ? And if the train was running without a head light, and without giving any other notice or warning of its approach, might not the jury infer that his death was occasioned by the recklessness of the company’s agents in thus running the train, rather than by any want of care on his part in not observing it in time to avoid danger ? It is true that it was the duty of the deceased, before he attempted to cross the railroad, to stop and look both ways, and listen for approaching trains, but it does not follow that there can be no recovery for his death, in the absence of direct and positive evidence that he observed these precautions. Eor does it follow that he failed to observe them because he was struck by the passing train.
How could he distinguish the noise of the train which went down with a head light from that of the train which was coming up; and what reason had he for supposing that a train was coming up at that hour without a head light, or signal of any kind? Where one is killed by such negligence as was shown in this case by the agents in charge of the train, the law will not presume in the absence of proof that his own negligence contributed to his death. If the court had charged that, the legal presumption in such case is, that the deceased was guilty of concurrent negligence, and that there could be no recovery for his death, without affirmative proof that he exercised due and proper care in crossing the railroad, and that he observed all the requisite precautions before he attempted to set his foot on the track, it would have been error.
The plaintiff in error, then, as we have endeavored to show, has no reason to complain of the charge; it was as favorable as the company had any right to expect. Whether a wife is entitled to recover as damages for the death of her husband only the difference between the worth or value of her services, and of the support which she would be entitled to receive from her husband, as the court charged in this case, it will be time enough to consider when the question arises.
Judgment affirmed.