In support of the motion for a nonsuit, two additional grounds are presented by the amendments: (1) that there was no evidence of want of ordinary care on the part of the defendants; and (2) that there was no evidence of such care on the part of the deceased.
The first ground is clearly untenable. There was direct evidence for the plaintiff "that a person standing on the track at the place of accident could be seen by one standing on the track at a point six hundred and seventy-five feet, or about forty-one rods, easterly from the place of accident;" and there was evidence tending to show that "the place of accident could be seen from a point on the track fifty-nine rods east of there, and that one elevated above the track eight or nine feet, to about the position of the engineer in running a train, could see a person at the place of the accident from a distance of seventy-one rods east of that point." There was also evidence that a train like the one in question in all respects, and running on such a track and with the same grade, could and should be brought to a stop inside of forty rods when the rate of speed is thirty-five miles an hour, and in a correspondingly shorter distance when the rate is less. Under these circumstances, it must be held that there was competent evidence of the defendants' want of ordinary care towards the deceased, and that by the exercise of such care they might have discovered him in season to have stopped the train and prevented the accident. Whether this evidence was of sufficient weight to warrant a *Page 323 verdict for the plaintiff, is a question which cannot be considered here. In civil causes there is no particular amount or weight of evidence required to warrant the jury in determining a controverted fact. If there is any substantial evidence, the jury are to decide upon the balance of probabilities. The court, as matter of law, determine what evidence is competent for the jury to weigh, but are in no wise authorized to determine what amount or weight of competent evidence is sufficient or insufficient to convince the minds of jurors, and warrant them in determining a matter of fact in dispute between parties. The competency of the proof given in evidence is matter of law for the court, but its weight is matter exclusively for the jury. Fuller v. Rounceville, 29 N.H. 554, 563, 564.
The second ground is likewise untenable. It is not true that there was no evidence of ordinary care on the part of the deceased. On the contrary, it appears from the testimony of his brother that as soon as the deceased knew of his danger he jumped away from the track and attempted to escape. There was also evidence that the train made but comparatively little noise; that extra trains over the road were not common, and consisted mainly of wood trains, which were run at a very low rate of speed; that within the knowledge of the deceased, persons of mature years and judgment were accustomed to use the road-bed and track as he was using them; and there was nothing tending to prove that he had, or reasonably ought to have had, notice or knowledge that the pay-train was due on or about that day. These facts and considerations not only refute the defendants' contention that there was absolutely no evidence of ordinary care by the decedent, but we think they afford competent evidence of sufficient weight on which fair-minded men might arrive at different conclusions; and when this is so, it is always the right of a plaintiff to invoke the judgment of the jury.
The remaining question raised by the amendments is that of a mistrial. At the trial the plaintiff was required to prove three things: negligence of the defendants, care of the decedent, and his rightful use of the track. In the former opinion in this case, it was held that the plaintiff need prove but two of these things, namely, negligence of the defendants and care of the decedent. An unnecessary burden was therefore imposed on the plaintiff at the trial, but how this harmed the defendants we fail to discover. Everything held necessary to the plaintiff's recovery, in the opinion, was held necessary at the trial. He was required to make it more probable than otherwise that the decedent did, and that the defendants did not, exercise ordinary care; and these questions were submitted to the jury under instructions, to which no exception was taken. In no way were the defendants deprived of their right to a fair trial; but, on the other hand, they had the full benefit of every defence open to them upon the proper issues in the *Page 324 case, and the additional benefit of a defence which was not properly open to them, and one, too, which strongly tended to defeat any recovery by the plaintiff.
To entitle the defendants to a new trial, it must appear that justice has not been done them, through accident, mistake, or misfortune, and that a further hearing would be equitable. G. L., c. 234, s. 1. The case made by the amendments does not come within either of these requirements.
Rehearing denied.
ALLEN, J., did not sit; SMITH, J., dissented; the others concurred.