therefore, in our judgment, there was no error prejudicial to the defendant.

In regard to the other questions discussed in the opinion of the Supreme Court we are satisfied with that court's deliverance, and the judgment under review will therefore be affirmed, with costs.

(88 Vt. 107)

EDGE.

A witness cannot testify that he could distinguish by sound between freight and passenger trains, for the knowledge of the deceased, who was run down at a crossing by a special train, though she had the same opportunities of observation, could not be measured by the knowledge of the witness.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 213-229; Dec. Dig. § 109.*]

2. TRIAL (§ 194*)-INSTRUCTIONS-Weight of TESTIMONY.

Action by Warren W. Seviour, as administrator, against the Rutland Railroad Company. There was a judgment for defendant, and plaintiff excepted. Exceptions overruled. Argued before POWERS, C. J., and MUNSON, WATSON, and HASELTON, JJ.

Hugh Chase, Clarke C. Fitts, and Hermon E. Eddy, all of Brattleboro, for plaintiff. Edwin W. Lawrence and T. W. Moloney, both of Rutland, for defendant.

SEVIOUR v. RUTLAND R. CO. (Supreme Court of Vermont. Oct. 14, 1914.) 1. EVIDENCE (§ 109*)—ADMISSIBILITY-KNOWL- MUNSON, J. Mrs. Seviour, the plaintiff's intestate, and her sister, Miss Hazen, while riding in a light open wagon drawn by one horse, with Miss Hazen driving, were killed by a north-bound train of the defendant at the first crossing north of Chester station. Mrs. Seviour was 22 years of age, and had been married 4 years, during the last 2 of which she had lived about a mile from the crossing, in the south part of the village, on the west side of the railroad. Until her marriage she lived with her parents a few rods from the crossing, on the easterly side of the track. Miss Hazen was a nurse, 41 years old, and had lived at this place 20 years, except that during the last 10 years she was away from home about half the time. C. R. Hazen, a brother lived here with Miss Hazen after the marriage of Mrs. Seviour and the subsequent death of the parents, getting most of his meals at Mrs. Seviour's when Miss Hazen was away. The location of the Hazen house was such that passing trains were plainly visible to its occupants.

The court may express its opinion regarding the weight of the evidence, provided the expression is fair and reasonable, and is accompanied by instructions which plainly leave the determination with the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

3. TRIAL (§ 194*)-INSTRUCTIONS-SUFFICIEN

CY.

In an action for the death of a traveler, run down at a railroad crossing, an instruction submitting to the jury the question whether the required signals were given is not bad because it informed them that it was the duty of the engineer to give the signals, and that there was a probability that he performed that duty; the instruction, while expressing the opinion of the court, not encroaching on the province of the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. $$ 413, 436. 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

4. EVIDENCE (§ 586*)-WEIGHT AND SUFFI

BILITY.

Where the evidence as to whether defendant's train which ran down plaintiff's intestate gave the required signals was conflicting, some of plaintiff's witnesses testifying that they did not hear them, an instruction that positive testimony is of more value than negative evidence was properly given.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 539-541, 543-548, 551; Dec. Dig. 8 235.*]

6. RAILROADS ($ 348*)-CROSSING ACCIDENTSACTIONS-EVIDENCE-SUFFICIENCY.

In an action for the wrongful death of a traveler run down at a crossing, evidence held insufficient to show that the servants in charge of the train were guilty of any negligence after they saw that deceased was about to go on the

track.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*]

Exceptions from Windham County Court; William H. Taylor, Judge.

The train which caused the injury consisted of the combined engine and observation car Nehasne, and a pay car. The train, as thus made up, goes over the road about once a month at irregular intervals, having no schedule time, and not stopping regularly at stations. It did not stop at Chester on this occasion. All passenger trains stop there. There is a crossing at the south end of the station, and another about a third of a mile below. The station signal is one long whistle, and this is required whether there is to be a stop or not. The signal for a crossing consists of two long and two short whistles. The evidence regarding the giving of signals was contradictory. The theory of the plaintiff, as stated in his brief, was that the occupants of the wagon were lulled into security by the giving of the station signal only, and the fact that passenger trains always stopped at Chester.

[1] C. R. Hazen was called by the plaintiff, and testified that he had frequently driven with his sisters, and that they had talked about trains and signals; and, after testifying under defendant's exception that there was a difference between the sound of a freight train and a passenger train as it approached, he was asked, "Are you able to distinguish which kind of a train is ap

*For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep'r Indexes

proaching by the sound?" and this was ex- The language excepted to was nothing cluded. Counsel argue that, inasmuch as all more than an incidental comment upon one three had the same opportunities of observa- | feature of the evidence. The facts that the tion, the knowledge which Mrs. Seviour and statute required the giving of the signal, and her sister had acquired by their observation that a rule of the company directed it, and could be shown by proving what the brother that it was a stated and frequently recurring would have known. We think the argument duty of the employé, might reasonably be is unsound, and that the question was prop- thought by the jury to lend some probability erly excluded. This is not like proving to the claim that it was given on this occawhether an object can be seen or a sound sion; and it was within the discretion of the heard from a given point. This involved a court to suggest these things to the jury as determination of the understanding which matters proper for their consideration in persons of different habits of observation and connection with the testimony of the witnessdifferent capabilities would gain from the es. The jury had already been distinctly same opportunities. It was not a matter to told that they were to determine the quesbe determined by tests. In the absence of tion upon the whole evidence. We think the proof of any information directly conveyed phrase complained of, in the connection in to them, the knowledge of the deceased par- which it was used, cannot have been misties was to be inferred by the jury from all leading. We are satisfied that the jury got that the evidence disclosed regarding them from it no impression that they were in any and their opportunities. way restricted in determining for themselves the probative value of this evidence.

[2, 3] The court referred to the crossing signal as required by the law and the rules of the company, and instructed the jury that in determining the issue regarding the giving of the signals they should keep in mind that the burden was upon the plaintiff to make out by a fair balance of evidence that the whistle was not sounded or the bell not rung, and that the rules of the company, introduced in evidence, governing the engineer in this regard, were to be considered with the other evidence in the case, keeping in mind that there was a rule which required the engineer to perform this duty, and the probability of his having discharged his duty, and thereupon submitting the question: "Do you find by a fair balance of the evidence that the signals were not given?" The plaintiff excepted to the charge that the jury should keep in mind the rule requiring signals and the probability that that rule was complied with.

[4, 5] With reference to the contradictory testimony regarding the giving of signals, the court charged, in substance, that there was a distinction between positive and negative evidence which should be taken into account; that the first was entitled to greater weight than the last, and that in weighing such evidence they should consider all the surrounding circumstances. The plaintiff excepted to the charge upon this subject, and specifically to the statement, in substance, that testimony that a person saw or heard a thing was entitled to greater weight than testimony that he did not see or hear a thing. The distinction made by the court is found in text-writers of authority, and is judicially recognized in this state. Bates v. Cilley, 47 Vt. 1; Farmers', etc., Bank v. Champlain Trans. Co., 23 Vt. 186, 56 Am. Dec. 68. The propriety of charging it depends upon circumstances. To give the instruction in some The language complained of was not used cases might be legal error. But, as applied in charging the jury upon any point of law. to this subject-matter, and in view of the The court was dealing with a controverted evidence presented, we think the plaintiff matter of fact and the evidence bearing up- has no ground of complaint. The defendant's on it. The jury were not told that the mat- evidence tended to show that all the required ters referred to raised any presumption in signals were given. Many of the plaintiff's favor of the claim that the signal was giv- witnesses regarding signals were men enThe statement was, at most, an expres-gaged in stores near the station and worksion of the court's opinion that the existence ing in and about mills located near the lower of the requirement afforded some support to the testimony of the witnesses who said that the signal was given. There is no legislative provision or judicial holding in this state that bars the court from expressing its opinion regarding the evidence and the weight of the evidence. The right is seldom exercised, but its existence remains unquestioned. The expression must, however, be fair and reasonable, and be accompanied by instructions which plainly leave the determination with the jury. Sawyer v. Phaley, 33 Vt. 69; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Baker v. Sherman, 71 Vt. 439, 46

en.

crossing. Some put it that they did not hear any whistle; others that they did not remember of hearing any; others that there was none. Some testified that one long whistle was given, and no other. Common experience has shown that signals regularly and frequently given within the hearing of persons who have no special interest in them, like the sounding of whistles, the ringing of bells, or the striking of clocks, are quite likely to occur without being noticed.

[6] The main track of the defendant's road, from a point south of Chester station to and beyond the crossing where the accident oc

ascending grade. The victims of the accident | when he first saw the team the train was were riding northward on a highway which probably 250 or 300 feet from the crossing crosses the railroad at an angle of 30 de- and the team 50 or 60 feet from it; that the grees. The main station building is on the team was jogging along probably 6 or 8 westerly side of the track, about 600 feet miles an hour; that when they whipped the south of the crossing. The freighthouse is horse the train was probably 100 feet from on the same side of the track, about 480 feet the crossing and the team 20 feet from it. south of the crossing. A traveler from the His testimony throughout was that when they south reaching a point in the highway about whipped the horse he immediately signaled 100 feet from the crossing could see the main the engineer to stop, and that until then he track as far south as the station. The horse had no idea that they were intending to driven by Miss Hazen was 16 years old, high- | cross. spirited, and a good roader. The plaintiff's witnesses placed the speed of the train at from 30 to 60 miles an hour. Defendant's witnesses placed it at from 25 to 30 miles. The point of impact was at the hind quarters of the horse.

not then observe how far the train went; | worth about $10,000. He left to survive him and that his judgment was based upon his but one child, a daughter, Nettie, born to him general experience in running trains. by his first wife, who died May 11, 1897. The daughter subsequently married J. Harry Moyer and became the mother of two children Josephine and Dorothy. By a will, dated September 4, 1912, and a codicil executed a month later, appellant's father gave the bulk of his estate to his second wife, collateral relatives, stepchildren, and charities. To each of his two grandchildren, Josephine and Dorothy Moyer, he gave $5,000. He practically disinherited his daughter and only child by the following clause in his will:

the recital of which in detail will serve no, who expressed his grief that she should useful purpose. It was shown by a number have so accused her mother. In September, of witnesses that she had nursed her mother during a long period of sickness with the tender solicitude of an affectionate child, that her father and mother had both praised her for what she had done for them, and that after the death of her mother the father had exhibited great affection for her and her two children. In view of all the testimony as to this, it is difficult to understand why he left but $1,000 of his large estate to her, and it would almost seem that he must have been under an insane delusion in giving his reason for doing so; but there was evidence from which he may have believed that his daughter's conduct towards himself and her mother had been unnatural. It was therefore for him alone, being of sound mind, to pass judgment on that evidence, and, how ever harsh, unnatural, and cruel his judgment may have been it was not, in legal contemplation, a delusion-a mere figment of his imagination, all-controlling with him in the execution of his will.

For ten years prior to his death he and his daughter had been estranged. This appears from her own testimony. She admits that she talked about him to members of his family, and it may be, as she says, not maliciously or unkindly, but for the purpose of helping him to do better. He, however, manifestly thought otherwise. On two occasions prior to her leaving his home in 1902, where she and her family were living with him, she had reproached him for his indecent conduct towards an orphan girl who was living with them as a domestic. While he did not resent this at the time, he may subsequently have done so, and regarded her reproof as "unnatural conduct" on her part. In a letter written to him in 1910, when she was about to undergo a serious operation, she pathetically refers to his long-time estrangement from her and asks his forgive ness for what he may have thought it was not her privilege as a daughter to ask and demand from him as a father. This appeal was unavailing, and he died unreconciled to his daughter, whose conduct he believed to have been unnatural towards him, in view of what she had said or done and of what she was reported to him as having said about him.

1903, in response to a request from her, he sent her the earrings of the mother, and in an accompanying letter wrote that he preferred sending them by a messenger to having her come to his house for them, and that he could no longer submit to her villification of him, threatening her that, if she did not desist from it, he would prosecute her. All this may have been unjust on his part, but there is nothing to show that it was a mere delusion which drove him into an unnatural attitude towards his daughter. He has stated why he discarded her. It may be-and we are inclined to so believe-that he was unreasonable in characterizing her conduct towards him and her mother as unnatural, and that his treatment of her as the natural object of his bounty was most harsh; but he acted upon what was his belief, and, if it was error, we are powerless to correct it. His opinion of his daughter's conduct, upon which he acted in making his will, may have been wholly unreasonable; but this can have no weight in the present inquiry, unless it be shown that the opinion rested on an imagined state of facts. McGovran's Estate, supra.

The burden was upon the appellant to show, by proof sufficient to sustain a verdict in her favor, that what she most naturally regards as the injustice of her father to her resulted from the delusion which she avers in her petition for the issue. After a review of all the testimony, we are constrained to say that she has failed to do so, and that we must concur in the following conclusion of the court below:

"It may safely be asserted as a clear fact ries afloat about Mr. Alexander which he believed from the testimony that there were many stoto have been started by Mrs. Moyer. She herself tells her father not to believe what he hears without giving her a chance to defend herself, the earrings. Whether Mr. Alexander is to be and he speaks of stories in his own letter about condemned for listening to rumors and idle gossip, or, perhaps, to false stories told by persons to discredit his own child, is not a question only inquiry is whether there is evidence from that this court is called upon to decide. which a jury might reasonably infer that Mr. Alexander was laboring under a mental disorder; and the result of that inquiry is that there is nothing to show that he did more than take the stories as they came to him, including the story about his dead wife, believe them, and pass a very severe judgment upon the daughDecree affirmed, at appellant's costs.

ter."

CO.

The

(246 Pa. 24)

From the testimony submitted by the proponents it appeared that, for years before the testator's death, the appellant had repeatedly spoken of his failings, that she had been reproached for doing so by those to whom she had complained of him, and that REESER v. METROPOLITAN ELECTRIC what she said about him had been repeated to him, leading him at times to say that what she had said of him had nearly made him crazy and almost ashamed to stay in Reading. It further appeared that she had charged her mother with overindulgence in drink, and this, too, was repeated to her father,

(Supreme Court of Pennsylvania. July 1, 1914.) MASTER AND SERVANT (§ 190*)-INJURY TO SERVANT-NEGLECT OF FELLOW SERVANTS

FOREMAN.

of a foreman, while he is assisting in the erecAn employé injured through the negligence tion of poles on which wires are to be strung,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes