The facts and circumstances disclosed by the evidence are sufficient to make it a. question for the jury whether the defendant was guilty of negligence which caused or contributed to the injury which was received by the plaintiff. (Greany v. L. I. R. R. Co., 101 N. Y. 423; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 364;, Swift v. S. I. R. T. R. R. Co., 123 id. 649; Miller v. N. Y. C. & H. R. R. R. Co., 82 Hun, 164; S. C. affd., 146 N. Y. 367.)
(2) Upon all the evidence given at the trial we are inclined to think that the question of whether the plaintiff was guilty of contributory negligence was one of fact proper to be submitted, to the jury. (Miller v. N. Y. C. & H. R. R. R. Co., 88 Hun, 164; affd., 146 N. Y. 367; Wilcox v. N. Y., L. E. & W. R. R. Co., 88 Hun, 267; Salter v. U. & B. R. R. Co., 59 N. Y. 631; S. C., 88 id. 42.)
When Smith and Speer discovered the- on-coming train, whether it was wise to advance or to endeavor to hold the team may- have been a very close question, and, considering the imminent peril they were in, they could not be expected, to act with cool deliberation; and whether, under all the circumstances, their action was. such as might reasonably be expected, was a proper question for the jury to determine. (Miller v. N. Y. C. & H. R. R. R. Co., supra) “ When a person is confronted by danger from both of two lines of' action,
(3) After the delivery of the body of the charge the counsel for the defendant asked the court to charge, and it did charge : “ That if Speer, the driver of the horses, was negligent in not exercising care in approaching the crossing, or at the crossing, Mr.. Smith, the plaintiff, is chargeable with Speer’s negligence and the consequences thereof.”
Thereupon the counsel for the defendant requested the court to charge : “ That if Speer, the driver, failed to look for tiie train, or pay any. attention to its approach, he was guilty of negligence, and Smith, the plaintiff, is chargeable therewith, and if the jury find that Speer’s negligence contributed to the accident, the plaintiff cannot recover.”
The court declined to so charge, and added, viz.:' “ The law about that is just this, Speer was the hired man there; he was under the control of Smith, and if Smith himself was using proper care and watching out for that train, then it made no difference whether Speer was doing it or not, but if Smith Was not doing anything, and leaving it for Speer to see, not only about the driving of the horses, but watching out for the train and trusting the whole matter over to Speer, then Speer’s negligence would be the negligence of Smith. But if Smith was taking care for himself, then it does not make any difference whether Speer was there or not, because Smith was doing all he was called upon to do.”
Thereupon the defendant excepted to the refusal of the request made and also excepted to the charge as made. In considering these exceptions it is proper to call to mind the situation of Speer and Smith at the time they were attempting to cross the defendant’s road. They sustained to each other the relation of. master and servant or principal and agent, and all the duties incident to those relations are to be imputed to them respectively. Speer was driving at the time, having the lines, in his hands and the management of the team. He says in the course of his testimony, viz.: “ I was
According to the plaintiff’s testimony he was doing .nothing to ■control or manage the horses. He says he looked and listened ; yet he states that he committed the control of the horses to his servant ■Speer. The request made called for a consideration of Speer’s failure of suitable attention in approaching the crossing, and also of the manner in which he handled the 'horses at the 'time- the danger was discovered, especially in his efforts first to stop them arid then afterwards his sudden change of mind in urging them forward. The burden was upon the plaintiff to show that lie was free from contributory negligence. In bearing the burden it was incumbent upon him to indicate, by the testimony relating to the circumstances jueceding and attending the crossing, that he and his servant had used due diligence in approaching and attempting to cross the railroad.
In Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16) the plaintiff was riding to market on a fish wagon and the' two men Were so situated that each was in a situation where he could control or manage, or contribute to the management of, the team. The plaintiff was injured. In the course of the opinion delivered in that case it was said: “We think the plaintiff was chargeable with the neglect of his comrade.”
In Brickell v. N. Y. C. & H. R. R. R. Co. (12 N. Y. St. Repr. 450; S. C. affd., 120 N. Y. 290) it appeared that the plaintiff took passage in Pulver’s top buggy for the village of Palmyra, and that plaintiff received injuries in attempting to cross the railroad, and in the course of the opinion delivered in that case I had occasion to. say: “ If the plaintiff ór Pulver had attended vigilantly to their duty in approaching the crossing the injuries in question might have been averted. Apparently they were occupied in conversation, giving no especial attention to the circumstances affecting .their safety in crossing the railway during the progress from the" south side of the bridge 120 feet onward”’