The motion for a nonsuit was properly denied. The speed of the train, the failure to diminish it after McMurphy's situation was discovered, and the absence of a flagman *Page 460 man were evidence upon which, under proper instructions, the jury might find a want of ordinary care on the part of the defendants.
It was competent for the jury to find that McMurphy was not in fault. Without any misconduct on his part he suddenly found himself in a situation of danger, whatever action he might take. Several alternatives were offered him. He might stop the horse, get out and take him by the bit, and abide the consequences of his fright when the train passed him. He might possibly turn about in the narrow pathway at the risk of upsetting. He might perhaps drive the horse over the ridge or bank and upon the side track at a like risk. He could jump out and abandon the horse and sleigh to such fate as might befall them. It is plain now that any one of these courses would have been better for him than the one he adopted. With no time to deliberate, — compelled to act upon the instant, — he concluded that he could get over the crossing before the engine reached it. He erred by the fraction of a second. If the train had been the tenth of a second later, or the speed of the horse by the least tittle greater, he would have passed the crossing in safety. A mere error of judgment is not necessarily negligence. Jones v. Boyce, 1 Stark. 493; Ingalls v. Bills, 9 Met. 1; Eckert v. Railroad,43 N.Y. 502, 505, 506. The question was whether person of average prudence situated as McMurphy was, possessed of the same knowledge and means of knowledge that he had of the surrounding circumstances, including his impending danger and means of avoiding it, would or might have done as he did. It was question of fact for the jury, to be determined by them in view of their experience in the affairs of life, — their knowledge of the motives that govern human action and of the conduct of reasonably prudent men in similar exigencies. To warrant its withdrawal from their consideration it would not be enough, were such the fact, that the judge at the trial term or the judges at the law term would, if the question were submitted to him or them, find on the evidence that McMurphy was in fault. To justify a nonsuit the court must be able to say that no reasonable and impartial man could find otherwise. The distinction is broad. "Judges may be able reasonably to say frequently that although they would not upon the facts have come to the same conclusion to which the jury have come, yet they . . . cannot say but that reasonable and fair men might agree with the conclusion of the jury; or in other words, that although they would not have arrived at the same conclusion, it is not contrary to reason to strive at it." Bridges v. Railway, L. R. 7 H. L. 213, 233. The view taken by the jury of McMurphy's conduct cannot be declared contrary to reason.
The instructions requested were properly refused. If the defendants, by their negligence in not providing a flagman or *Page 461 otherwise, created the dangerous situation from which McMurphy by due care was unable to escape, they were liable, although after discovering McMurphy's peril they could not prevent the accident. The exception to the instructions given raises substantially the same question as the motion for a nonsuit. It rests upon the defendants' erroneous position that the driving' by McMurphy "consciously" upon the crossing in front of the approaching train was conclusive evidence of negligence on his part.
The liability of McMurphy's horse to take fright at the approaching train and to be more frightened when it reached a point directly abreast of him was material on the question whether he exercised ordinary care. The testimony of the witness relative to the behavior of horses when in near proximity to a moving train of cars appears to be the statement of a fact within his personal knowledge derived from experience (Barron v. Cobleigh,11 N.H. 557, 566, 567; Hale v. Handy, 26 N.H. 206, 216), rather than an expression of opinion. In either aspect it was competent. For the purpose of proving the probable behavior of a horse under particular circumstances, the conduct of other horses in the same or a similar situation may be shown. Darling v. Westmoreland, 52 N.H. 401. It cannot be presumed that all men are so familiar with the conduct of horses when in the vicinity of and in different relative positions from a moving train that they can derive no information on the subject from the opinion of a witness expert in the use and management of horses in such situations. Barnes v. Heath, 58 N.H. 196; Donnelly v. Fitch, 136 Mass. 558; Clinton v. Howard, 42 Conn. 294.
Exceptions overruled.
PARSONS, J., did not sit: the others concurred. *Page 462