
    (76 Hun, 53.)
    VAN INWEGEN v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Appeal—Review—Weioht op Evidence.
    In an action against a railroad company for personal injuries, caused1 by blowing a whistle and letting off steam from defendant’s locomotive, whereby plaintiff’s team w"as ñ-ightened and ran away, a judgment in favor of plaintiff will not be disturbed on appeal on the ground that the-engineer was not acting within the scope of his employment, where he testifies that the acts complained of were done for the purpose of moving the cars in the course of his duty, though according to plaintiff’s testimony such acts were willful and malicious.
    Appeal from circuit court, Orange county.
    Action by James H. Van Inwegen against the New York, Lake-Erie & Western Railroad Company to recover for injuries to plaintiff’s team of horses, harness, and wagon, and for injuries to himself, caused by the running away of his horses, which were frightened: by defendant’s locomotive. Plaintiff alleged that while;, a locomotive was standing idle on defendant’s track, near the highway, plaintiff asked the engineer not to start or make any noise until he got past with his team, but that the engineer started the locomotive, blew the whistle, let off steam, and made such a noise that the team was frightened into running away and doing the damage complained of. Defendant answered that it used such prudence and reasonable care as was usual in its business, and no more noise was made than was needed for the necessary signal. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Argued before DYKMAN and PRATT, JJ.
    John W. Lyon, for appellant.
    Lewis C. Carr, for respondent.
   PRATT, J.

The principal argument urged against the verdict is that, if plaintiff was correct in his interpretation of the engineer’s action, it was willful and malicious, and not performed in the service of defendant. The answer to that argument is that the opinion of the plaintiff was not binding on the jury, who were the judges of that question. The engineer testified that he blew the whistle in the course of his duty for the purpose of moving the cars. The jury had a right to believe the engineer. They were also authorized by the testimony to find that the action of the engineer was heedless, and without due regard to the situation of the plaintiff. The charge of the court correctly laid down the law, and the testimony warranted the verdict. Judgment affirmed.  