
    Mary Newson, Administratrix, &c., v. The New York Central Railroad Company.
    The law will not hold it imprudent in a person to act upon the presumption that another, in his conduct, will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. '
    N. was unloading the defendant’s cars at the place on a side track where, by agreement with the owners of the freight, they had been left for unloading, and at the very point designated by the defendant’s agent, using his team for that purpose, as all the parties contemplated when the arrangement was made. While N. was thus engaged, a locomotive approached, on the main track, and his horses becoming frightened, he received an injury resulting in his death.
    
      Held, that it was a part of the agreement between the owners of the freight and the railroad company that the person going for the freight should not be molested, or endangered in his person or property, by any act or proceeding on the part of the company.
    That they owed N. a plain duty not to expose him to danger while there, employed in that manner, and that it did not lie with them to say he was guilty of negligence in going therfe, under the agreement, even though he was warned that it was a dangerous place.
    And, it appearing that the defendant was under no overpowering necessity of using the track in question, on that occasion, there being several other tracks which might have been used; Held, that a slight inconvenience attending the use of the other tracks was not sufliicient to affect the otherwise plain implication of the agreement that the defendant would do nothing to place the person going for the freight in jeopardy.
    And that the act of the defendant, in running its locomotive engine over that track, at the time and under the circumstances, was a clear act of negligence and breach of duty on its part towards N., for which a recovery might be had by N.’s personal representatives.
    This action was brought by the administratrix of John Newson, who, it is alleged, was tilled by the negligence of the defendant, to recover damages for such negligence. It appeared on the trial that the firm of Adams, Hastings & McYean, of Rochester, employed the railroad company to transport from Charlotte to Rochester á quantity of gravel in dpen or platform cars, and to be taken from the cars after its arrival in Rochester by Adams, Hastings & MoYean. The railroad company was desirous of leaving the cars at such point on the line of the railroad as would be most convenient for the. owners of the gravel to unload it; and for that purpose the agent of the company offered to "place the cars containing the gravel at three different points on their road—-one on the side track near Lyell street, one on the'side track at Jay street, and the last on the side track next south of the platform, on the north side of the railroad, near the passenger depot, and between State and Mill streets. Mr. Hastings made objections to the other places, but chose the latter place, and the agent of the -company consented to send the cars having the gravel on board on the track next to the platform, and leave them there until the gravel could be removed by Adams, Hastings & McVean. This platform wás constructed several years ago for the' purpose of receiving and discharging such articles of freight as it was' not practicable to receive into and pass through the freight house. It is twelve feet wide, and extends from Mill to State street. The railroad company, at the time of its construction, opened and graded a road or carriage-way on the north side of the platform 151 feet wide; and usually¡ when cars were left on the side track or branch next south of the platform for discharging freight, the articles are removed from the cars on to the platform, or passed over it on to carts or wagons standing on the north side; but sometimes teams have been driven up to the south side of the cars, and stood in the space between the cars and the track next south, which is some 15 feet. This track next south of the branch track is used mainly for passing locomotives to and from the engine house to and from points east of the passenger depot, running on the track outside of and north of the depot. The gravel might easily have been taken from the cars in the usual way of discharging freight at that pointy across the platform, the wagon standing on the north side; but it was more convenient to take it from the cars by placing the wagon on the south side of the cars, in the space above mentioned. Adams, Hastings & McVean requested Newson, who was a teamster, and followed the business of teaming with his own team, to transport the gravel from the railroad to their paper-mill, which was about two ■ miles distant. No direction was given to him as to the mode of removing the gravel from the cars to the wagon, except to say to him to take a shovel and go for the gravel, telling him in general terms where it was, but without instructing him whether to place his wagon on the south or on the, north side, of this platform. It appeared that Newson took one load of gravel from the cars early in the morning, and then drove his team into the space between the branch track and the track next south, and placed his wagon directly south of the cars; that while • he was 'thus loading, a locomotive passed along the track next south of his team, backing down from the engine-house on Brown street, and passing north of the depot to the east side of the river; that while passing Newson’s. team his horses were frightened and restive, but Newson then held them by .their heads and was able to control them. The flagman of the railroad company, standing near, after the engine had passed, warned Newson of the danger of the place—that he must take his .team away; that it was no place for him there. But notwithstanding this occurrence and this warning, Newson in a short time returned to the same place for another load of gravel, and while standing there with his team, the horses not being fastened in any way, another locomotive came from the engine-house, passing along the same track as the first, and backing down in the same way, at the usual speed of three or four miles an hour, for the purpose of passing along on the north side of the depot tq take a train of freight cars from the east side of the river to Buffalo. When the locomotive approached the spot where Newson was standing, and until it got probably within fifty or sixty feet from him, he stood on the gravel cars shoveling gravel into his wagon, his horses’ heads facing the approaching engine, when the horses becoming restive, he jumped down from the cars and caught the bridles of the horses near their heads, and endeavored to keep their heads toward the gravel cars; but they kept backing up and swaying out, and just as the tender attached to the locomotive was passing the horses, they suddenly plunged toward the south, and the pole of the wagon 'caught between the spokes of the hind driving-wheel of the locomotive, the fore legs of the near horse, or one of them, was caught by the wheels and broken. Newson was, at this moment^ near the rear of his horses, on the south side of his wagon, and fell or was thrown over the hub of the forward wagon wheel, two of his ribs broken, the bone broken per•forating the lungs, from which injury, in the course of a few days, he died. It did not appear how he came to be in the position he was when he was hurt, nor whether he was thrown' against the hub of the wagon wheel by the plunging of his horses or by the horses falling against him by the force of the collision with the locomotive. None of the witnesses saw him after he • left the horses’ heads until the locomotive had passed. It is probable that when he saw the collision inevitable, he sprung to get out of the way of the locomotive, and by some mis-step fell on or was thrown against the wagon wheel. He had a scar "on his leg near the thigh, which indicated that his horse had trod upon his leg after he was thrown down. The engineer, the moment he discovered the horses turning toward the engine, reversed its motion, and did all that could be done to stop the locomotive; but it could not be stopped till it had passed the wagon. At the close of the plaintiff’s evidence, the defendant’s counsel moved for a non-suit, which was denied, and the motion was again renewed at the close of the whole case and again denied. It was insisted upon the motions for non-suit, on the part of the defendant by its counsel:
    1st. That the burden of proof was upon the plaintiff to show that Newson was without fault, and that the plaintiff’s proof had not shown this; and
    2d. That from the proof in the case, it was clear that Newson was guilty of negligence:
    (1.) In placing Ms team on the south side of the gravel cars, and so near the passing locomotive and trains, especially as lie knew that Ms horses were liable to be frightened from that cause, and after having been notified and directed by the flagman of the company to keep away from that place.
    (2.) In not fastemng his horses, or otherwise securing them against the consequences of any fright.
    (3.) He had shown, by his efforts in the morning, that he had the power to manage and control and prevent a collision under precisely the same circumstances, and his failing to do so, in this instance, was evidence of negligence.
    (4.) That the proof did not show any negligence on the part of the defendants.
    The judge charged the jury, among other tMngs:
    (1.) That if it was agreed between the defendants and the owners of the gravel that the gravel should be unloaded and taken away from that place (the south side of the cars), and that was the place designated by the defendants (the south side of the cars) for the teams to go and get their loads, the deceased was rightfully and properly there, and the defendants owed him a duty not to put Mm in peril; and that if the place was dangerous, it was wrongful and negligent on the part’ of the defendants to pass their engines over the track wMle he was loading. This part of the charge was excepted to by defendants’ counsel.
    (2.) That it was right. and proper that the deceased should use all reasonable exertions to save his property, and if rightfully there (on the south side) it was a duty he owed the defendants and Mmself to protect Ms property from injury (of course by jumping down and seizing the horses by the head, &c.); and that if he did not unreasonably expose himself, the effort would form no obstacle to his recovery. This part of the charge was also excepted to by the defendants’ counsel.
    The judge was requested to charge the jury that if they should find that New,son’s, horses were frightened in the morning,, and that he was notified by the flagman that the place was a dangerous one, his placing his horses there a second time, without fastening or seeming them in some way, was negligence on his part which contributed to produce the injury. The judge declined so to charge the jury, but permitted them to take that circumstance into consideration when they came to the question of fault on the part of. Newson. This refusal was duly excepted to by defendants’counsel.
    The jury found a verdict in favor of the plaintiff, and from the judgment thereon the defendants appealed.
    
      S. T. Fairchild, for the appellants.
    
      Benedict and Martindale, for the respondent.
   Johnson, J.

All the material questions of fact were fully and fairly submitted to the jury upon the trial; and the judgment having been affirmed in the supreme court, the verdict is conclusive here, upon all such questions of fact. The judgment must therefore be affirmed, unless there was some error upon the trial, in matter of law. It is claimed on behalf of the defendants that, as matter of law, Newson, the deceased, was guilty of negligence in going after the second load, in view of the undisputed evidence that the defendants were using the track with their locomotives immediately adjoining the place where the deceased was loading his wagon the first time, and that his horses then became frightened: and that the plaintiff should have been non-suited, or a verdict ordered in the defendants’ favor. ‘

The jury have found, as matter of fact, upon the evidence, that the deceased was not guilty of negligence on his part in going after the second load, notwithstanding the evidence as to what took plaice when he was taking the first load. In view of all the facts and circumstances of this case, the question of negligence in going after the second load, when the injury happened, was most clearly a question of fact for the jury. Although there is evidence to show that the horses were frightened by the locomotive, when it caiñe along so near to them, as the deceased was taking on his first load, it also appears that the deceased held them readily. It does not appear that they moved at all from the place where they were standing, or became in any degree restive, so as not readily to submit to control. The locomotive passed, and the deceased finished putting on his load, and went away safely without any serious trouble or difficulty. The jury might well say from this evidence that the team was a suitable one to take to such a place, and that there was nothing attending the taking of the first load to lead a person ,of'ordinary prudence to apprehend any danger in going after the second load; especially in view of the legal rights and duties of the respective parties, as laid down by the judge in his charge. The place was the one designated by the defendants’ agent for the team to go for that purpose, and even if the defendants had, in one instance, in violation of their duty, run their locomotive so near as to frighten the team, the deceased was not bound to presume they would do it a second time. He might well suppose they would not voluntarily endanger his safety a second time, in violation of his rights, and. their duty, while acting under their directions. It would be going quite too far in favor of these corporations using these mighty forces, so irresistible and so dangerous to those happening to come in their way, to hold, as matter of law, that a person receiving an injury had been negligent, and so remediless, unless he had acted upon the assumption that they would in any case act in total disregard of his rights, and their own plain duty towards him and others.

The law will never hold it imprudent in any one to act upon the presumption that another in his conduct" will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. Here the deceased was unloading the defendants’ cars at the place where they had been left for unloading, and at tKe very point designated by their agent, using his team as all the parties contemplated when the arrangement was made. It was part of the contract that the deceased, or some other person, should go there with his team, and take away the freight which the defendants had transported in their cars and left there to be taken •away in that manner. It is too plain for argument that it was part of the agreement, that the person thus going there for that purpose should not be molested or endangered in his person or property, by any .act of proceeding on the part of the defendants. They owed him a plain and clear duty not to expose him to danger while there, employed in that manner, and it does not lie with them to say he was guilty of negligence in going there under the agreement, even though the subordinate flagman, who knew nothing of the arrangement, warned him that .it was a dangerous place. a

The defendants were under no overpowering necessity of using the track in question on that occasion. Conceding it to have been the usual and most convenient track for the purpose for which it was then being traversed,.it was not the only one that might have been used. There were several others which might have been used; so .that the omission to use the one in question for the time being, did not involve a suspension of the defendants’ business. The most that can be claimed on that subject is that by being compelled to use another track, at that time, they might have been put to some slight inconvenience. That is not sufficient to affect the otherwise plain implication of the agreement, that they would do' nothing to place the person going there in jeopardy. The act of the defendants, therefore, in running their locomotive engine over that track, at the time and under the circumstances, was a clear act of negligence and breach of duty on their part towards the deceased, and the judgment should be affirmed.

All the judges concurred, except Davies, J., who read an opinion for reversal, and Ingraham and Selden, JJ., who did not vote* Judgment affirmed*  