
    Andrew Totten, Resp’t, v. The N. Y., L. E. & W. R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Negligence. — Railroad crossing.
    On the trial of an action for damages caused by a collision of plan tiff’s carriage with defendant’s train at a crossing, the court declined to charge that Ihe particular gait at which the plaintiff was driving as he approached the crossing, which was described as a slow trot, was of itself negligence on his part. Held, no error.
    2. Same. — Evidence.—Trial.
    An objection to the form of a question and the order of proof are both in the discretion of the court.
    Appeal from a judgment entered on the verdict of a jury at the Steuben circuit, and from an order denying the defendants motion for a new trial on the minutes.
    The action was for the loss of a horse and an injuiy to a wagon ■occasioned by a collision with a train of the defendant at a highway crossing.
    
      J. H. Stevens, for app’lt; W. W. Clark, for resp’t'
   Dwight, P. J.

We think the evidence in this case required, the submission to the jury of the two questions of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff. The evidence on the subject of the omission of signals from the approaching train was, as usual, contradictory and manifestly required the submission of that question to the-jury- .

. The question whether the plaintiff observed all reasonable precautions to avoid the collision was one in respect to which different inferences -might possibly be drawn from the evidence by different minds, and it was for that reason -a question for the jury. The instructions given to the jury seem to us in all respects adequate and correct. The court properly declined to charge that the particular gait at which the plaintiff was driving as he approached the crossing, which was described as a slow trot, was of itself negligence on his part. The jury was instructed that they must take into consideration (among other things) “ the way became upon the' track and the pace at which he went down to it,’’" and say whether, under the circumstances, there was any negligence on his part in those respects.

The objection to the direct question put to several witnesses,, State whether there was any signal, either by the ringing of the bell or blowing of the whistle, of that train before it got to the-crossing,” was not well taken. The objection was that the question was improper in form, and that no foundation was laid for it,, by which it seems to have been intended that it was not shown what observation of the subject the witness had made. But at. most the objection related only to the form of the question and the order of proof, which were both in the discretion of the court

We find no exception in the case which can vitiate the verdict, and are of opinion that the judgment and order appealed from should be affirmed.

Macomber and Corlett, JJ., concur..

Judgment and order appealed from affirmed.  