Wilds agt. Hudson River Railroad Company. there was some evidence that defendant's servant was negligent) there was not evidence enough to take the case to the jury. While the case in 1 Allen, (pp. 187-90,) lays down as the undoubted law (of Massachusetts) that the plaintiff must show " by affirmative proof that he was in the exercise of due care," and for failure of such proof the court should, as it did, non-suit. Let us examine this case upon the principies of all but the last case (not passing upon that.) What proof is there, of want of care on the part of the defendants? So far as the plaintiff's witnesses are concerned, one man, a tin-pedler, who stood by his tin wagon, some five rods from the track, talking with a woman to whom he was trying to sell his tinware, says he first heard the whistle a very short time before Wilds was struck by the engine, or almost at that instant, and that he heard the bell of the engine before the engine was in sight. That Wilds drove on to the track as the train was coming, and was nearly across it when he was hit. That the train was coming fast for that part of the track, where it does not generally go fast. He is the plaintiff's only witness who saw the occurrence, and he says he did not see a flagman there. The point of collision was at the crossing of the railroad track and Fourth street, in the lower part of the city of Troy. The time noon-day. Carroll (a passenger says he can't tell how on the train) called for the plaintiff; fast the cars were then running; they were running very rapidly, he thinks. Eddy testifies as to the measurement of distances only; chiefly as to how far up the track a person could see from Fourth street below the track; and says a man sitting in a wagon twenty-five feet south of the south track, in the centre of Fourth street, could see the cars at a distance of six hundred and fifty feet. Gifford testifies that from the point of collision to the point where the train was stopped after the collision, was about four hundred feet. This is all the plaintiff's evidence on the VOL. XXIII, 32 Wilds agt. Hudson River Railroad Company. subject. No proof was offered to show any rate of speed, or whether "fast for that part of the track," or (what the witness thought) "very rapidly," was six miles an hour or any other rate; and no evidence was offered to show within what distance a train could be stopped when going at any specified rate of speed. This evidence proves these facts: That the defendants complied with the statute by giving the warning of the bell, so that it was heard by the plaintiff's only witness at a distance sufficient and in time sufficient to give abundant notice to all persons to keep off the track. That at the time of such warning, and as the train was approaching the crossing, Wilds was not (nor was any one) upon the track, for the engineer to see him and check his train; and that the engine ran against an object which was put upon the track suddenly (on a trot,) and when the engineer had no reason to anticipate or try to avoid hitting it. It would seem difficult to say that here was any proof of any negli gence of the defendants. And negligence, like any other ground of action, must be proved. Add to this the defendants' evidence. Orr testifies that he heard the whistle before the flagman went to his position, and of course, from the whole evidence, this was the long, warning whistle (as a signal of an approaching train,) not the short, sharp whistle for stopping, which was but the instant before collision. Maria Banker heard the whistle and bell before Wilds came up to the track. These two witnesses had no connection with the railroad company. Agan, the flagman, heard both whistle and bell before he went from his flaghouse to the flagman's station upon the crossing. Young, the conductor, testifies to the sounding of the long, warning whistle as far off as the bridge above the hospital. Gregory, the engineer, says the whistle was sounded above the hospital, and the bell was ringing all the time from the depot to the crossing in question (half a mile.) Porter, the fireman, says he rang the bell all the way down, and Wilds agt. Hudson River Railroad Company. the whistle was sounded above the hospital. Van Hoesen, the brakeman, says the whistle was sounded and the bell rung through the cut (which terminates at the hospital.) Roarke, baggage-master, says the long whistle was blown long before they got to the place of collision. Thus, eight witnesses, not in any way discredited (by cross-examination or otherwise,) two of whom had no bias for the defendants, establish affirmatively that the company did give the proper warning of approach; and as to that point, it is beyond controversy that there was no negligence on the part of the defendants. As to speed: Young thinks it about five miles an hour. Gregory says it was about five or six miles an hour. Porter says about six miles an hour, as estimated to the best of his knowledge. Roarke says about six or seven miles an hour. It is proved that the rails were slippery from recent rains, which rendered stopping quickly difficult. But there is no proof as to the distance required for stopping a train at any rate of speed; and even if the rate of speed might have something to do with the question of defendants' want of care, there is no shadow of proof that it did. The only other point on which the plaintiff's case made even a suggestion of negligence on the part of the defendants is, that the one witness, Gillespie (the tin-pedler) says "there was no flagman there that he could see." On this point he is unquestionably in error. Porter, Orr, Maria Banker, O'Brien, Agan (the flagman,) Ware, six witnesses, four of whom were unconnected with the company, testify not merely to the flagman's being there, but to his making abundant signals of an approaching train, and being nearly run over, actually hit, by the team of Wilds. Due care in this respect is abundantly, overwhelmingly proved. Nor is it at all material to this point of due care, whether the flagman, being on the track and waving his flag as a signal, was directing his particular attention to keeping back Wilds, or to keeping a woman and child out of danger. He Wilds agt. Hudson River Railroad Company. was there, making signals plainly visible to all; and that he could not attend to two at once, when both were bent on running into danger, was not his fault or that of the company. The men upon the engine tried to stop as soon as they saw any reason for stopping. Seeing the flagman in his place, to keep persons off the track, and there being no one on the track, they had no reason to suppose that any one would disregard all the usual warnings and get on the track directly under the engine. As soon as Wilds did this, they saw him, and attempted all possible means to avoid a collision; but it was then inevitable. The entire evidence fails utterly to show any degree of negligence on the part of the company, and the second motion, for a non-suit, should have been granted. On the other hand, how stands the proof of carelessness on the part of the deceased? The plaintiff's chief witness, the only one who saw the occurrence, says: "When I first heard the whistle, he was getting right on to the south railroad track with his horses. If he had stopped then, he would not have been hit. He could not stop very easily." He did whip his horses, and went across the south track and nearly across the north track; when on that track his wagon was struck. The defendants' witnesses show a very strong case of carelessness, if not of utter recklessness, on Wilds' part. Orr testifies to the flagman being in the middle of the street, between the two tracks, waving his flag both ways, and that teams were checked by that, and waited. That O'Brien attempted to stop Wilds, by throwing up his hands and shouting at him, and that failing to stop him by these means, O'Brien stepped into the street and tried to catch his horses; Wilds drew up the reins, whipped up the horses, and went across the track, when the engine struck him. That Wilds' horses, in crossing, struck the flagman and turned him around two or three paces. That when O'Brien shouted to him, the horses were fifteen feet from Wilds agt. Hudson River Railroad Company. the south track, and coming upon a smart trot. Maria Banker says, that having heard the whistle and bell, she looked out of her window (which commands a clear view of the spot,) and saw the man approaching on a fast trot. She halloed to him to stop; he looked around; she halloed to him again; he whipped his horses; the flagman held his flag before the horses; the flagman was hit by the horses, and went down. When she halloed, the horses had not got on to the south track. O'Brien says the flagman was in his position, swinging his flag, and that seeing Wilds coming up on a trot, and knowing him, he started towards him to keep him back, holding up his hands to him for that purpose, and finally he tried to grasp the horses; the horses passed him, went on the track, hit the flagman in the back, went on in front of the engine, and the collision occurred. Agan, the flagman, says he was in his proper place, waving his flag; that his immediate attention was taken by a woman with a child in her arms, whom he was keeping off the track, when Wilds' team struck him as he was standing on the south track, and he barely escaped with his life. Ware was further off; he saw the flagman there, and says he was trying to keep Wilds back, and that Wilds kept pushing up and hit the flagman. He says the flagman was facing Wilds-an error not very remarkable in the confusion, and not important, since he confirms the facts that the flagman was there, and was struck by the team. It is further in evidence that the railroad had been in operation there some eighteen months, and that Wilds was well acquainted with the city, came to it every Saturday to supply his customers with the produce of his farm (which was some twelve miles out,) and that on this day he had gone to South Troy, across this very track, to a customer's house; so that he knew the railroad was there, and all about the crossing. Is it possible, from all this body of direct evidence, to draw two inferences? Can there be a doubt that Wilds knew the train was coming, |