Dwight, P. J.
After a very careful examination of the evidence in this case, aided by the elaborate briefs of counsel furnished on two arguments of the appeal, we are impressed with the conviction that the evidence bearing upon the question of the degree of care exercised by the plaintiff’s intestate, for his own safety, in the attempt to cross the tracks of the defendant railroad, on the occasion of the casualty which was the subject of this inquiry, was not such as to warrant a verdict in favor of the plaintiff. The rules of law which govern yiis conclusion are perfectly well settled, and are not open to discussion. The burden was upon the plaintiff to establish, affirmatively, the fact that the deceased exercised all due and reasonable care to avoid the collision which resulted in his death. That this fact may, and in most cases of this character can, only be established by reasonable inference from the attending circumstances proved in the case is undoubtedly true; and equally so that where such inference may be legitimately drawn from the evidence it is the province of the jury to say so by their verdict. But the rules thus stated imply'
Page 453
that the jury is not necessarily, in every case, even of conflicting evidence, the final arbiter of the question of fact. The power and the duty of the court to set aside verdicts which are clearly contrary to the just preponderance of the evidence is one recognized and enjoined by all the authorities; and this not alone in cases where the motion for nonsuit is improperly denied. In the case of
Colt v.
Railroad Co., 49 N. Y. 671, in which the opinion is not reported, the only question seems to have been whether a nonsuit should have been granted, and the court, if correctly reported in the head-note, said, in an opinion by Allen, J., that it is not enough to justify a nonsuit that the court might, in the exercise of its discretion, grant a new trial, but that the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial. In the case of
Adsit v.
Wilson, 7 How. Pr. 64, 66, the general term of this court, in the eighth district, held, in language quoted and approved by Daniels, J., in
Manufacturing Co. v.
Foster, 51 Barb. 346, 350: “It is the legal duty of the courts io see that issues of fact in their courts are fully and fairly tried; and in courts of record, if the verdict or findings of fact is so clearly without evidence, or against evidence, as to satisfy the court that there is strong probable ground to believe that the merits have not been fully and fairly discussed, or that the jury have given their verdict under a misconception of the law, or under any improper extraneous influence, and that great injustice has been done, the court will set aside the verdict, not for the purpose of assuming the trial of the facts themselves, but for the purpose of granting a new trial by another jury, or by other triors; under circumstances more favorable to a just result.” And in the latter case this principle was held to be sanctioned in several cases cited. In the case of
Smith v.
Insurance Co., 49 N. Y. 211, 216, the court say: “The action of the supreme court was plainly right. It is their duty to set aside a verdict which is against the clear weight of evidence.” And Judge Peckham significantly adds: “Justice would be promoted if the supreme court should more frequently exercise its unquestioned right of reviewing verdicts upon the facts.” In the case before us we find an absence of circumstances from which the inference can be legitimately or reasonably drawn that the deceased was exercising due and reasonable care for his own safety when he drove upon the track in front of the approaching train. On the contrary, we think the clear import o£ the evidence is that his conduct was the result either of complete inattention to the requirements of the situation, or of a miscalculation of his chances of making the crossing in advance of the train. He was perfectly familiar with the crossing, and bad reason to know that the train was due. He was in the habit of crossing the track at about the same time nearly every day in the year. The flagman, who had been maintained by the defendant at that crossing for many years, was at his post, not only giving the ordinary signals of the approach of the train, but shouting a warning to the deceased himself. An ice-cart, which had been stopped by its driver to await the passage of the train, stood at a safe distance from the track, and not so near as to intercept the view of the deceased of the approaching train at a point where he might safely have stopped or turned aside to avoid the collision. The street upon which he drove was the main street in Canandaigua, and was level from side to side, and more than six rods wide between the curb-stones. His horse was aged and gentle, and entirely in his control; but he drove at a trot; and without slacking his speed, past the ice-cart, and over an intervening track, onto the track where the collision occurred. Without attempting to recount all the circumstances of the case in detail, it is sufficient to say that so.far from establishing affirmatively the fact of the exercise of due and reasonable care for his own safety on the part of the deceased, they strongly tend to establish the absence of such care. Such being the case, even if it were to be conceded that the motion for a nonsuit was properly denied, the motion for
Page 454
a new trial should have been granted; and for error in that respect the judgment should be reversed and a new trial granted, with costs to abide the event.
Childs, J., concurs.