i. Negligence a question of
Whether the injury complained of resulted from negligence on the part of the was, under the circumstances of the case, a question for the jury. The evidence is sufficient to sustain their finding, and the damages recovered do.not appear to us to be excessive. Penn. R. Co. v. Barnett, 59 Pa. St. 259 Phila. etc. R. Co. v. Killips, 88 Pa. St. 405; Railway v. Hall, 53 Ark. 7.
2. what is proximate ingfeof ldU"
The court’s second, third, eleventh and thirteenth # instructions were correct; and we discover no objection to the twelfth that is not merely formal. The fourth and fifth instructions, and so much of that given by the court upon0 its own motion and numbered six as related to the road-crossing, were misleading. But the error in these three instructions was probably rendered harmless by the last clause of the sixth. If there was error in any part of the tenth instruction, it was not unfavorable to the defendant. And so far as the instructions refused were proper, they are covered substantially by the court’s charge. But, in giving the sixth instruction requested by the defendant with the change made by the court, an error was committed which we cannot treat as otherwise than prejudicial to the defendant. The effect of that instruction was to direct a verdict for the plaintiff if the jury found that the injury to his intestate was caused by the defendant’s negligence either in blowing off steam or in 'failing to keep the crossing in repair.' It made the defendant’s liability the same in either case; and the plaintiff was thus allowed to recover if the jury found there was negligence as to the crossing, although they were unable to find that there was any whatever in frightening the team. But all the evidence shows that the proximate cause of the injury was the frightening of the team. Billman v. Railway Co. 76 Ind. 166. If that was due to the company’s negligence, it was liable for all the consequences resulting directly from it; otherwise it was liable for none of them. The deceased was not injured in driving or attempting to drive over the crossing. He was carried there involuntarily by the frightened team, and the defendant was not responsible for his being there if its negligence was not the cause of the fright to the team. The question as to the company’s liability would not be .changed if it were shown that the condition of the crossing was perfect, and that the deceased would have been carried safely over it but for a defect in the wagon. The condition of the crossing-was not, therefore, material to the issue. And yet the instruction in question permitted the jury to make it decisive of the cause.
Nor this error the judgment must be reversed, and a new trial directed.