proached the crossing he looked both ways, but saw nothing to indicate its presence or any approaching danger. The train came from the left of the highway, upon which side there were woods obscuring the plaintiff's view. The locomotive was not using steam, and the sound of the train was obstructed or interfered with by the woods. The track was wet from previous rain. A number of witnesses testified that they were in a position to have heard the sounding of the whistle or the ringing of the bell if it had been blown or rung, but that they did not hear either. Upon the other hand, the defendant's witnesses testified that the engine whistled a number of times at different stations and crossings within a few miles of the point where the accident occurred, and that it whistled a quarter of a mile away. They also testified that the engine bell was rung from that distance to the crossing. One of the defendant's employes, or rather a student fireman upon the engine, testified that the whistle was not blown until the train was within 400 feet of the crossing, and that the fireman was lazily ringing the bell for about eighty rods, but that he did not ring loudly, for the clapper just touched the sides with a slow motion. There was also proof that the automatic signal near the crossing could be heard for a distance of a quarter of a mile when it rang, but that it did not ring on the approach of this train.

The train was moving thirty-five miles an hour, or at the rate of over fifty-one feet per second. The coach was going from five to seven miles an hour, or from about seven to ten feet per second. As the coach approached, no one upon it discovered the crossing or the track until the horses were within about ten feet of the rails. At that time the driver was within fifty feet of the track, the plaintiff sixty-five feet away, and their view of the approaching train was obstructed by the woods. No sound of its approach had been previously heard. At that time, however, one of the party, who stood upon the highest part of the coach, saw the train, cried out, Here comes a train," and immediately jumped from the side of the coach to the road. He struck the ground about thirty feet from the nearest rail. When the warning was shouted by the young man who jumped off, the leaders were over, the body team was just crossing, and the wheelers were upon the track. Upon discovering the situation, to save himself and his passengers, the driver seized his whip and lashed the team into a jump. The train was late and did not slacken its speed until it struck the coach near the middle, demolishing it, throwing the passengers to the ground and killing or maiming most of them. The plaintiff was thrown a distance of 124 feet and landed upon a sand pile. He sustained a fracture of the shoulder blade and various bruises and contusions upon his head and other portions of his body. The defendant's engineer testified that he could stop the train within 500

feet, but it was not stopped until it had passed the crossing a distance of 775 feet. The team was across and the coach was nearly across the track when the collision occurred. The engineer of the defendant saw the horses as they came from behind the woods, but they passed over a distance of twenty-four feet after he saw them before he applied the brakes or undertook to stop the train. He used no sand upon the track, but reversed the engine, which locked the wheels so that they slid, and the train did not stop as soon as it otherwise would.

The plaintiff's associates, who made the contract for the team, selected the coach to be furnished for this excursion, and it was decorated with bunting by them. The young men who hired this equipage took a number of young women with them. No particular place had been selected where their luncheon was to be eaten, and, previous to the time of the accident, they had been looking for a place.

Having thus briefly stated the facts, so far as necessary to a proper understanding of the questions involved, we are brought to the consideration of some of the exceptions taken upon the trial. While we have examined them all, we find but few that require special consideration.

The first and only serious question raised by the exceptions of the defendant relates to the charge of the learned trial judge. At the conclusion of the principal charge the plaintiff requested the court to charge as follows: If you find that the engineer of the defendant's train, after seeing the horses attached to the tally-ho in which plaintiff was seated, omitted to do any act which might have prevented the collision, or might have lessened the danger to plaintiff, defendant was guilty of negligence." The court so charged, and the defendant excepted. The appellant now urges that this was error, for which the judgment should be reversed.

The engineer upon the defendant's train first saw the leaders of the team attached to the tally-ho when the train was about 400 feet from the crossing. It was then running at the rate of thirty-five miles an hour, and he did not attempt to stop it until he saw the team coming upon the track, when he applied the emergency brake and reversed the engine. At the rate of speed which the train was running only about eight seconds elapsed after he first saw the horses when the collision occurred. Thus, he was suddenly confronted with an emergency, having but a few seconds in which to take such precautions as were possible to prevent the accident or mitigate the injury. The acts necessary to stop the train were described upon the trial, and the engineer testified as to what was done. The effect of this charge was to instruct the jury that if the engineer omitted any one thing which might have prevented the collision or lessened the danger, the defendant was guilty of

negligence. This, in effect, was an instruction that if it should find that any such act was omitted, then, as a matter of law, the defendant was negligent. This may have presented to the minds of the jury the situation as it existed under the proof and subsequent to the time of the accident. The jury could properly consider only the situation as it was found to have existed when the accident occurred, and in the light of all the facts and circimstances which surrounded the engineer at that time. No one fact or circumstance could be considered by it independently of the others which related to it.

It is often the case that after a transaction has occurred the most careful can discover that a different course of action might have prevented a calamity, or, at least, mitigated the injury. Still, when an emergency presents itself and a person is under great excitement from the presence of an impending peril, he may not act with that perfect judgment that he would under other and different circumstances and still not be negligent. "Railways are not liable for a mistaken exercise of judgment upon the part of their servants * * to act with the utmost possible promptitude when the circumstances are such as to afford no time for deliberation" (Patterson's Railway Accident Law, p. 111). Where an employe of a railroad company is confronted with a sudden emergency the failure on his part to exercise the best judgment the case renders possible does not establish lack of care and skill upon his part which renders the company liable (Wynn v. Cent. P., N. & E. R. R. R., 133 N. Y. 575). It is not responsible even for his error of judgment (Bittner v. Crosstown R'y, 153 N. Y. 76; Stabenau v. At. Ave. R. R., 155 N. Y. 511).

The charge was in direct conflict with the principle of these authorities. Under the instruction given the jury may have understood that negligence on the part of the defendant might be based upon the omission of the engineer to do any act which it at the time of the trial believed would have prevented the collision or lessened the injury, thus practically ignoring the situation at the time of the accident. The short period of time in which he was obliged to act, the impending danger to his train, to himself, to his passengers and to others, with the consequent excitement attending such a situation, the various acts required to stop or lessen the speed of the train, and all the other circumstances surrounding him at the time, should have been presented to the jury and considered by it before it could properly find the defendant negligent by reason of the acts of its engineer. By the portion of the charge under consideration the jury was permitted to find the defendant negligent without regard to these facts and circumstances, and to hold it liable for any mistaken exercise of judgment upon the part of the engineer. This charge cannot be upheld without disregarding

many of the principles of the law of negligence which are thoroughly established by the decisions of this court. It was clearly erroneous, and requires a reversal of the judgment from which this appeal is taken.

We might well leave the other questions in this case until the necessity for their determination shall be subsequently presented, except for the fact that there are many cases pending where the same questions are involved, one of which is of quite general importance, and was the basis upon which this appeal was allowed.

On the trial the defendant requested the court to charge: "It is negligence as matter of law to drive on to a steam railroad track where the view is obstructed without stopping, looking and listening. The court: I will not charge it in those words. Mr. Kelly: I except to your honor's refusal to charge as requested. The court: I will charge as follows: It is negligence as matter of law to drive on to a steam railroad track where the view is obstructed without looking and listening. Mr. Kelly: I except to your honor's refusal to charge as requested. The court: I would say further that whether it is the duty of the traveler to stop depends upon the circumstances of the case, the surrounding conditions and the nature of the vehicle which he is using. I do not say, as matter of law, it is his duty to stop every time; I say there might be conditions under which he ought to stop in the exercise of ordinary care. Whether it was the duty of the plaintiff here to have stopped is for the jury to say, under all the circumstances surrounding this case. Considering the condition of the crossing, the obstructions, if any, its situation and the surroundings and the nature of the vehicle which was being used by him. Gen. Tracy: And the defendant excepts to your honor's charge to that effect." We find no error in this charge, and think the defendant's exceptions were not well taken. This question has been recently before us, and it was held that a person approaching a railroad crossing is not required, as a matter of law, to stop before attempting to cross the track, but his omission to do so is a fact for the consideration of the jury (Judson v. Central Vermont R. R., 158 N. Y. 597).

The defendant likewise asked the court to charge that "no negligence can be imputed to the defendant by reason of the size or shape of the danger signal, or the language of the warning, or the length of the letters." This the court declined to charge and the defendant excepted. It is obvious that by this request it sought an instruction to the effect that a disregard of the statute by it as to signboards across streets or highways at its crossings could not be made a basis of negligence. As we have already seen, the statute requires every railroad corporation to cause boards to be placed, supported and maintained across each public road or street, where the same is crossed by a

railroad at grade. It also describes in detail their height, the manner in which they shall be constructed and maintained, the words which shall be painted thereon, the character of the letters employed and their length and width. That the sign erected at the crossing where this accident occurred did not comply with the statute there is no doubt. It is equally clear that the one prescribed by the statute would be more readily seen and would more effectually notify an approaching traveler of the existence or situation of the railroad than the one used.

While the omission to comply with the statute in this respect might not constitute actionable negligence, where a person was injured who was familiar with the crossing, and had it in mind at the time, as in such a case the omission would not contribute to his injury, still, where one is injured who is not familiar with the crossing, but is a stranger, wholly ignorant of its existence or of the presence of any signboard, such an omission might constitute negligence which would justify a recovery. Although this precise question has not, to our knowledge, been passed upon by this court, yet, in discussing a somewhat similar question in 'almer v. N. Y. C. & H. R. R. R. (112 N. Y. 234, 244), Judge Danforth said: "I do not think the court can say, as matter of law, that the statutes which require signals and precautions can be disregarded by the defendant, and it be allowed to claim that the traveler should not be influenced by these omissions." Again he says: "Effect must be given to these wise regulations concerning measures to be adopted by a railroad company for the safety of the traveler." We think the same principle should be applied to the omission of a railroad company to comply with the statute requiring signboards at railroad crossings where no such precaution is taken or where it is obvious that the precaution provided by the company is less efficient than that required by the statute. We are of the opinion that proof of the omission of a railroad company to comply with this statute is admissible upon the question, and may constitute actionable negligence and justify a recovery where the injury was caused by a disregard of it. This conclusion is sustained by several text writers and by decisions in other jurisdictions where the question has arisen (Thomas on Negligence, p. 409; Patterson's Railway Accident Law, p. 162; Shaber v. St. P., M. & M. R'y, 28 Minn. 103; R. R. Co. v. Whitacre, 35 Ohio St. 627; Elkins v. Boston & A. R. R., 115 Mass. 190, 201; Winstanley v. C., M. & St. P. R. R., 72 Wis. 375, 380; Heddles v. Chicago & N. W. R. R., 77 Wis. 228, 232; Haas v. Grand R. & I. R. R., 47 Mich. 401). It follows that the court properly refused to charge upon this subject as requested by the defendant.

The defendant also took the following exception to the main charge: "I except to your honor's statement of the obligation on the part of the

traveler, where you say to the jury that a traveler is bound to exercise ordinary care to avoid the happening of an accident at a steam railroad crossing. I except to that, and ask your honor to charge the jury that a traveler is bound to use extraorumary care to avoid accidents at a steam ranroad crossing, and to use all his faculties to actermine whether a tram is approaching and to avoid it. The court declined to so charge, because of the use of the word "extraordinary,” and said that aside from that it charged as requested.

Mr. Kelly: Your honor charges that it was the duty of the traveler to exercise all his faculties to avoid danger? The court: Yes, I have done that already. Gen. Tracy: We except to the refusal of your honor to charge as requested, including the use of the word extraordinary.'" We find no error in this ruling. The degree of care which a traveler must observe in approaching a railroad crossing has been recently under consideration by this court, and it was there held that a person approaching such a crossing is not bound to exercise the greatest diligence, but only such as a prudent man approaching such a place would ordinarily exercise under the circumstances (Judson v. Cent. Vt. R. R., 158 N. Y. 597).

The only other question that need be specially considered arises upon the defendant's exception to the refusal of the court to charge that the relauon of master and servant existed between the plaintiff and his associates and the driver and helper; that the former were responsible for their competency, and that their negligence, if there was any, was imputable to the plaintiff and his associates. In order to establish the liability of one person for an injury caused by the negligence of another, it is not enough to show that the latter was, at the time, acting under an employment by the former; it must be shown in addition that the employment created the relation of master and servant (Hexamer v. Webb, 101 N. Y. 377; King v. N. Y. C. & H. R. R. R., 66 N. Y. 184; Butler v. Townsend, 126 N. Y. 105). In the latter case Judge Finch said that the relation of master and servant exists where the employer selects the workman, may remove or discharge him for misconduct, and may not only order what work shall be done, but the manner and mode of perform

ance.

The

The plaintiff in the case at bar did not ire or pay the driver or attendant, and had no voice in their selection, which was an important element in determining the relation between them. fact that the driver may have received from the plaintiff or his associates orders when to go forward and stop, did not make the driver the servant of the plaintiff (Johnson v. N. A. S. N. Co., 132 N. Y. 576). No farther discussion of the question is necessary at this time, as we have recently had this subject under consideration (Murray Dwight, 161 N. Y. 301). It is manifest that under

V.

the principles established by the decisions of this court the relation of master and servant did not exist between the plaintiff and the driver or helper, or either of them.

After carefully and studiously examining the great number of perplexing and difficult questions determined during the heat and excitement of a sharp and protracted trial, we can but admire and commend the scrupulous and intelligent care and ability evinced by the trial judge, and the almost unerring correctness of his rulings. When the number and variety of the questions raised are considered, we are surprised, not that a single error was committed, but that there were not many

more.

The judgment and order should be reversed and a new trial ordered, with costs to abide the event. PARKER, Ch. J.; GRAY, O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur. Judgment and order reversed, &c.

L

LEGAL WIT AND HUMOR.

ORD ERSKINE once declared at a large party at which Lady Erskine was present that a "wife was only a tin canister tied to one's tail," whereupon the following lines were written: "Lord Erskine, at woman presuming to rail,

Calls a wife a tin canister tied to one's tail; And fair Lady Anne, while the subject he carries on,

Seems hurt at his lordship's degrading comparison.

But wherefore degrading? Considered aright, A canister's polished, and useful, and bright; And should dirt its original purity hide, That's the fault of the puppy to whom it is tied!" An attorney, on the marriage of his son, gave him £500, and handed him over a Chancery suit, with some common-law actions. About two years afterwards the son asked his father for more business. "Why, I gave you that capital Chancery suit," replied the father, "and then you have got a great many new clients; what more can you want?" "Yes, sir," replied the son, "but I have wound up the Chancery suit, and given my client great satisfaction, and he is in possession of the estate." "What, you improvident fool," rejoined the father indignantly, "that suit was in my family for twenty-five years, and would have continued so as much longer if I had kept it. I shall not encourage such a fellow."

One chief justice was hanged at Tyburn in 1389 by the barons, who were at variance with his lordship's legal views.

Chief Justice Saunders was corpulent in his person, drinking at times beer on the bench, and occasionally brusque to every one who sat near him. His constant abode was with an old tailor near Temple Bar. He left the tailor his executor.

The complaint of Jack Cade was that of the common folk in his days: "Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment?" His first command, as Shakespeare has represented it, was: Now go some and pull down the Inns of Court." And so effectually did his followers execute this behest that they burnt the Temple with its libraries and practiced the last solemn rites of the law upon all students and practicers" they could meet with. Two legal knots:

If 'tis to marry when the knot is tied,

Why then they marry who at Tyburn ride; And if that knot till death is loosed by none, Why then to marry and be hanged's all one." Laws are like grapes, that being too much pressed yield a hard and unwholesome wine.

-

A Lawyer and His New Office Boy. — A lawyer took in a new boy the other day, and, as he had suffered to some extent from the depredations of the former one, he determined to try the new boy's honesty at once. He therefore placed a fiveround note under a weight on his desk, and walked out without a word. Upon his return half an hour later the note was gone, and half-acrown in silver had taken its place. "Boy! when I went out I left £5 under this weight." "Yes, sir; but you hadn't been gone five minutes when a man came in with a bill against you for £4 178. 6d. I guess the change is correct? You paid a bill?" 'Yes, sir; there it is all receipted. The man said it had slipped your mind for the last four years, and so -"He did not get any further before he made a rush for the door. That boy is not in the law business any more.

Lord Chief Justice Willes was a man of so little personal decorum that he was perpetually offending against the respect due to his office. He would play cards at the public rooms at watering places, and one night, when so engaged, was extremely annoyed by a young barrister, who, feigning to be intoxicated, stood by the table, looking over his cards, and was so troublesome that at last Willes spoke sharply to him: "Sir," said he, pretending to stagger, "I beg pardon; but I wanted to improve in playing whist; so-so I came to look over you; for if — if — I-I am not mistaken, sir - you are a judge."

Some years ago men used to walk about openly in Westminster Hall with a piece of straw in their boot. By this sign attorneys knew that such persons were in want of employment as false witnesses, and would give any evidence required for | money. For instance, if an advocate wanted an obliging witness, he would go to one of these men and show him a fee, which, if not sufficient, the witness would not take any notice. The fee was then increased until its weight recalled the power of memory to a sufficient extent. By this they derived their name, "Men of Straw."

A question was asked, Which were the greatest

wonders in the world? 'Twas answered: Women's and lawyers' tongues, for that they did lye, yet never lye still.

Gen. Hawley, who drew up his own will because of the hatred and suspicion with which he regarded all lawyers, left £100 to his servant, Elizabeth Buskett, because she had proved herself a useful and agreeable handmaid. The rest of his belongings he bequeathed to his adopted son, but provided that, if he married the said Elizabeth, neither were to inherit a farthing. He desired his executors to consign his carcass to any place they pleased, and if the parish priest should claim a burial fee they were to let the puppy have it.

Marriage is a kind of legal traffic carried on between the two sexes, in which each is constantly endeavoring to cheat the other, and both are commonly losers in the end.

The will of a jilted bachelor left a handsome legacy to a lady who had, twenty years before, refused to marry him, in order to express his gratitude to her for her forbearance, and his admiration for her sagacity in leaving him to a happy bachelor life of independence and freedom.

The will of John George, of Lambeth, who died in London in June, 1791, contained the following words: "Seeing that I have had the misfortune to be married to the aforesaid Elizabeth, who ever since our union has tormented me in every possible way; that, not content with making game of all my remonstrances, she has done all she could to render my life miserable; that heaven seems to have sent her into the world solely to drive me out of it; that the strength of Samson, the genius of Homer, the prudence of Augustus, the skill of Pyrrhus, the patience of Job, the philosophy of Socrates, the subtlety of Hannibal, the vigilance of Hermogenes, would not suffice to subdue the perversity of her character; that no power on earth can change her, seeing we have lived apart during the last eight years, and that the only result has been the ruin of my son, whom she has corrupted and estranged from me; weighing maturely and seriously all these considerations, I bequeath to my said wife Elizabeth the sum of one shilling, to be paid unto her within six months after my death."

In the course of a trial in the Court of Common Pleas, one of the witnesses stated to Mr. Sergeant Vaughan, who was cross-examining him, that he (the witness) was a twine-spinner and mat manufacturer, and dealt in flax and hemp. Mr. Sergeant Vaughan: "I am sorry to hear, sir, that you deal in hemp (a laugh)." Witness: "I dare say you are, sir, for I make ropes to hang lawyers" (great laughter). Mr. Sergeant Vaughan: 'I hope, sir, you will keep a little for your own use, for you are very likely to want it." Witness: "I shall save enough for you, sir, at all events."

Two Irishmen being about to be hanged, the gallows were erected over the margin of a river.

When the first man was drawn up the rope gave way; he fell into the stream, and escaped by swimming. The remaining culprit, looking at the executioner, said with genuine native simplicity, and an earnestness that evinced his sincerity: "Do, good Mr. Ketch, if you please, tie me up tight, for if the rope breaks I am sure to be drowned, for I can't swim a stroke."

Dymond once wrote as follows respecting barristers: "When a barrister arrives at an assize town on the circuit, and tacitly publishes that he is willing to take the brief of any client; that he is ready to employ his abilities, his ingenuity, that any given cause is good, or that it is bad, and when, having gone before a jury, he urges the side on which he happens to be employed with all the earnestness of seeming integrity and truth, and devotes the faculties God has given him in promotion of its success - when we see all this, and remember that it was the toss of a die whether he should have done exactly the contrary, I think that no expression characterizes the procedure, but that of intellectual and moral prostitution."

A Dakota schoolmistress sued three young men for breach of promise. Counsel for one of the defendants moved for a nonsuit, on the ground that she was too promiscuous. The court seemed disposed to grant the motion, whereupon the plaintiff asked: "Judge, did you ever go out duck shooting? His honor's eyes lit up with pride of a sportsman as he answered: 'Well, I should say so; and many's the time that I've brought down a dozen at a shot." "I knew it," eagerly added the fair plaintiff; "that's just the case with me, judge. A flock of these fellows besieged me, and I winged three of them." The motion for a nonsuit was denied.