
    Samuel C. Cotton, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      {Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Railroad—Negligence—Defective farm crossing.
    While driving over a farm crossing one of plaintiff’s horses caught his hoof between the rail and plank so that he was held until struck by an engine and killed. It appeared that the space between the rail and plank was unusual and such as might nroduce accidents of that kind. TTdd.
    
    
      ■ that there was a failure of defendant’s duty to maintain a safe crossing, and that it was properly held liable.
    3. Jury—Right of court to excuse.
    So long as twelve competent and impartial men are actually empanelled, to none of whom any statutory or other objection can be made, a party has no cause to complain and should not he permitted to object to the proceedings directed by the court in respect to the exercise of its discretion-in. excusing jurors.
    Appeal by the defendant, the New York, Lake Erie & Western Railroad Company, from a judgment entered upon a verdict-rendered at the Allegany circuit, on the 20th day of October, 1883, and, also, from an order of the special term denying its-motion for a new trial upon a case and exceptions.
    
      George F. Brownell, for app’lt; S. M. Norton, for resp’t.
   Macomber, J.

This action was brought to recover the value of a horse belonging to the plaintiff which was killed by the defendant’s locomotive, together with certain other damages to-his harness and wagon.

While passing the farm crossing on the defendant’s railroad' through the lands of one Hubbard Cotton, in the town of Friendship, N. Y, one of the plaintiff’s team of horses caught his foot, between the plank and the rail in such a manner that he was unable to extricate himself. A train of the defendant’s cars soon-, came along, and its locomotive struck the horse while in that position and killed him, the other horse escaping, as did likewise the occupants of the wagon. Ho question is made -touching the-amount of recovery.

It was the duty of the defendant to maintain a proper and safe-crossing at this point This it failed to do. Whatever may have, been the original construction of the plank adjacent to the rail where the horse’s hoof was caught, it is shown satisfactorily by the evidence returned, that the space between the rail and the plank was unusual, and such as might produce accidents of this-description. We do not deem it necessary to enter upon the evidence in detail. The horses were being carefully driven across the place in the usual and ordinary manner and in the customary track. The horse’s hoof and shoe were of the usual-dimensions, so far as appears, but the space mentioned left by the railway company between the rail and the plank was so great as readily to receive the horse’s hoof, or a portion of it, in such a manner as to hold him as in a vise. Upon the merits we think the verdict was right.

There are sundry exceptions in the case, only one of which, however, needs to be mentioned. It seems that the trial, on the-day of the-month named, took place on a Saturday at the court house in the village of Belmont, N. Y. Many of the jurors in attendance as members of a regular panel for. that term, in order to reach home by the usual routes of travel, were obliged to leave the village of Belmont before the evening and probably before the-trial of this action could be concluded.

Thereupon the court excused such jurors, and they were notempanelled or called in the case. So many of the jurors left the court under this very reasonable and proper direction of the; learned judge, that only ten of the original panel remained, and consequently two bystanders were called to take the places of those who had been excused. To this objection was made, and exceptions taken in various forms by counsel then, but not now .acting for the defendant. We think there is no merit in the objection, and that the exceptions thereto were frivolous. The justice at the circuit is something more than a mere moderator. The duty is devolved by law upon him to conduct a court and direct all of its proceedings. If he see fit to permit to go home on Saturday at a certain hour of the day certain jurors, who otherwise would be obliged to remain away from home through Sunday, he has the right, in the exercise of his judgment and discretion, to permit it, and it is not within the province of counsel to undertake to usurp by fatuous objection his constitutional functions, and intrude themselves upon the bench. So long as twelve competent and impartial men are actually empanelled, to none of whom any statutory or other objection could be made, the defendant has no cause to complain, and should not be permitted to object to the proceedings directed by the court in respect to the exercise of the discretion imposed in the judge in excusing jurors. The judgment and order appealed from should be affirmed.

Judgment and order appealed from, affirmed.

Dwight, P. J., concurs; Lewis, J., not sitting.  