to find out whether Foster was going to burn off the right of way; Moss went by Foster's orders; Foster told Moss to go down to burn off the right of way; I did not ask for the car for Triner."

Being shown the statement which the defendant's agent had procured him to sign, he said, "I signed this paper; I heard it read before I signed it, it was not read to me as it reads now; the paper was read to me 'whether he was going to burn off the right of way.' In support of this cause for a new trial it was shown by affidavit, that the facts contained in the written statement could be proved by the testimony of Jacob Moss, who was absent in Iowa or Minnesota, and that the defendant's attorney, relying on said written statement, went into trial, without asking for a continuance on account of the absence of Moss, and that the defendant could prove by Moss that he was not sent by Foster, but went with Triner and his men to help them.

It has been held that, as a general rule, neither party is entitled to a new trial because he was surprised by the testimony of the adverse party (Cummins v. Walden, 4 Bld. 307; Travis v. Barkhurst, 4 Ind. 171); nor because he was surprised by the tes timony of his own witness. Graeber v. Fowler, 7 Bld. 554; Ruger v. Bungan, 10 Ind. 451; Guard v. Risk, 11 Ind. 156; Brownlee v. Kenneip, 41 Ind. 216.

In Todd v. The State, however, 25 Ind. 212, a new trial was granted where the defendant was surprised, because his own witness stated on the trial facts contrary to what he had previously stated to defendant's counsel.

And it has been held that, where a party to a suit, in order to influence the action of his adversary, tells him that certain facts will not be controverted on the trial, and the latter relies on such statement and omits to produce witnesses to prove such facts, he may be entitled to a new trial on the ground of surprise, which ordinary prudence could not guard against. Haynes v. The State, 45 Ind. 424. But it is not ordinary prudence to rely on the unsworn statements of your adversary's witness as to what he will testify at the trial.

Besides, in this case it does not appear that if the witness, on the trial, had sworn to the alleged previous statement, the result of the trial would have been thereby changed. Cox v. Hutchings, 21 Ind. 219. And the statement was not proved as alleged, the witness denied that he had made such a statement.

There was no cause for a new trial on the ground of surprise. The sixth and seventh causes for a new trial are that the verdict was not sustained by sufficient evidence and is contrary to law; the appellant, in his brief, confines his argument to the question of the sufficiency of the evidence; there was evidence tending to sustain the verdict, therefore it cannot be disturbed here. Becker v. Denmure, 78 Ind. 147.

The only remaining cause for a new trial is excessive damages. The evidence shows a case of negligence not combined with intentional wrong. The jury gave $2500 damages, of which $500 were allowed for physical and mental injury, and $2000 for permanent disability; the plaintiff at the time of the injury was 62 years old, the only permanent disability proved was a disability to do ordinary household work. The plaintiff testified, "I did my own housework before the accident. I cannot do it now, except to hold a little child in my lap."

Dr. Jones testified, "Owing to old age and previous sickness, the broken bones of the arm did not readily unite, and it was necessary to keep the bandages on tight for a long time, and the arm became very much withered as it now appears. It will never become well again, she will never be able to do housework with it." In general, courts will not interfere with the verdict of a jury on the ground of excessive damages unless the damages are so great as to appear at first blush to be outrageous, or such as indicate that they were the result of partiality or prejudice, and not of deliberate judgment. Farman v. Lauman, 73 Ind. 568. The jury has a very broad discretion on the subject of damages. The City of Delphi v. Lowery, 74 Ind. 520. It is the judgment of the jury and not the judgment of the court which is to assess the damages in actions for personal torts and injuries. O. & M. R. R. Co. v. Collarn, 73 Ind. 261. We cannot disturb the judgment on the ground of excessive damages. The B. P. & C. Ry. Co. v. Pixley,

61 Ind. 22.

The judgment ought to be affirmed.

Per CURIAM.-It is therefore ordered on the foregoing opinion that the judgment of the court below be and is hereby in all things affirmed at the costs of the appellant.

See Myers v. Richmond, etc., R. R. Co. infra, p. 293.

ALICE CONNELLY, Administratrix, etc., Respondent,

v.

THE NEW YORK CENTRAL AND HUDSON RIVER R. R. Co.,

Appellant.

(88 New York Reports, 346.)

In an action to recover damages for alleged negligence causing the death of C., plaintiff's intestate, it appeared that C. was going south upon a north and south highway which crossed defendant's road. He was driving a team attached to a loaded wagon. There were four tracks at the crossing; a train was approaching from the west on the south track; it was in sight for nearly

half a mile at a point on the highway more than two hundred and fifty feet north of the crossing, and from a point fifty feet north of the south track there was an unobstructed view of the railroad to the west for a mile. The railroad was about twelve feet above the original surface of the highway, and was reached by an embankment, protected by a railing on each side. Two of plaintiff's witnesses who were going north and who passed C. ten or fifteen rods north of the crossing, observed the train approach, it then being nearly half a mile distant; they looked back and observed C.; he was then at least fifteen feet from the crossing sitting on his load partly facing the east; he continued to drive on until he got upon the north track; then seeing, apparently, the train for the first time, he partly raised up and commenced whipping his horses; they passed safely over, but the engine struck the wagon and C. was killed. There was no evidence that the horses were unmanageable or that C. might not have stopped on the north track. Held, that assuming the misjudgment of C. in attempting to cross in front of the train was not alone sufficient to charge him with negligence, his not observing the train before reaching the track, or, if he did see it, his proceeding on without stopping was negligence, and a refusal to nonsuit error.

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of plaintiff entered upon a verdict.

This action was brought to recover damages for alleged negligence, causing the death of Patrick Connelly, plaintiff's intestate, who was killed while attempting to cross defendant's road at a highway crossing in the town of Geddes, Onondaga County. The highway runs north and south, the railroad east and west. The deceased approached the crossing from the north, driving a team attached to a loaded wagon, he sitting upon the load. The evidence as to the circumstances of the accident, so far as material, are stated in the opinion. At the close of plaintiff's evidence, and also at the close of all the evidence, defendant's counsel moved for a nonsuit, which was denied, and said counsel duly excepted.

D. Pratt, for appellant. A person approaching a railway crossing upon the highway is bound to make vigilant use of his eyes and ears to ascertain if a train is approaching, and if by so doing he could have avoided a collision, a recovery cannot be had for injuries received. Salter v. U. & B. R. R. Co., 75 N. Y. 273; Reynolds v. N. Y. C. R. R. Co., 58 id. 248, 250, 252; Wild v. H. R. Ř. R. Co., 24 id. 430, 432; Warner v. N. Y. C. R. R. Co., 74 id. 470, 471; Steenes v. O. & S. R. R. Co., 18 id. 422. The election whether to carry the highway over or under the railroad, or on a grade with it, is with the company, and when exercised in good faith is not reviewable. People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302, 304. In approaching a railroad, a man must be prepared to stop when necessary. 75 N. Y. 273. That deceased was well acquainted with the ground does not excuse his negligence, but rather adds to and intensifies it. 75 N. Y. 274. If a party sees the train it ceases to be of any consequence whether the bell

is rung or not. Pakalinski v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 427. The burden of proof is on the plaintiff to show that the deceased is free from contributive negligence. Reynolds v. N. Y. C. & H. R. R. Co., 58 N. Y. 248. There must be evidence from which an intelligent jury can reasonably find that deceased was free from negligence which contributed to the injury. Toomey v. Brighton Ry., 36 C. B. (N. S.) 146; Coen v. Clark, 94 U. S. 278. As against positive affirmative evidence of credible witnesses, to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more witnesses that they did not hear it, to authorize the submission of the question to the jury. Culhane v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 133; Siebert v The Erie Ry. Co., 49 Barb. 584. If deceased looked as claimed, he must have seen the train more than eighty rods from the crossing. In such case it was immaterial whether the bell was rung or not. Pakalinski v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424.

William C. Ruger, for respondent. A failure to comply with the statutory requirements with reference to the giving of the usual signals is negligence per se. Renwick v. N. Y. C. R. R. Co., 36 N. Y. 132; Ernst v. Hudson River R. R. Co., 35 id. 9. The testimony will justify a jury in finding that the bell did not ring as against the evidence of the defendant's employees that they rang the bell a whole mile before they reached the crossing. Salter v. U. & B. R. R. Co., 59 N. Y. 631; Dyer v. Erie Ry. Co., 71 id. 237; Bryne v. N. Y. C. R. R. Co., 14 Hun, 323; Voak v. Northern Cent. R. R. Co., 75 N. Y. 322. It was the defendant's duty, both by statute and at common law, to keep its road at the crossing in a safe condition, so that a traveller upon the highway exercising ordinary care could pass the same in safety. A failure to do so also constitutes negligence. Gale v. N, Y. C. & H. R. R. R. Co., 76 N. Y. 594; Laws of 1850, chap. 140, § 28; Laws of 1853, chap. 62; Albany, etc., R. R. Co. v. Brownell, 24 N. Y. 345; People v. B. & A. R. R. Co., 70 id. 569; People v. D. & C. R. R. Co., 58 id. 152; People v. N. Y. C. & II. R. R. R. Co., 74 id. 302; Richardson v. N. Y. C. R. R. Co., 45 id. 848; Wooster v. Forty-second Street Ry. Co., 50 id. 203; Colt v. Lewiston R. R. Co., 36 id. 214; Cuddeback v. Jewett, 20 Hun, 187; Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 217. The question of contributory negligence was properly submitted to the jury. Massoth v, D. & H. Canal Co., 64 N. Y. 529; Stackus v. N. Y. C. & H. R. R. R. Co., 79 id. 464; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Hackford v. N. Y. C. & H. R. R. R. Co., 53 id. 654; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72. While the plaintiff must be free from negligence, it is not necessary that the absence of contributory negligence should be established by direct evidence, but it may be made to appear from the circumstances, and in weighing those circumstances it

may be assumed that all men are desirous of preserving their lives and keeping their bodies from harm. Morrison v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 643; Hart v. Hudson River R. R. Co., 80 id. 622. Where one places another by his negligent act in such a position of jeopardy to either his life or his property that he is compelled to choose upon the instant, and in the face of apparently grave and impending peril between two hazards, and he makes such a choice as a person of ordinary prudence placed in the same situation might make, and injury results therefrom, the fact that if he had chosen the other hazard he would have escaped injury does not prove contributory negligence. Twombly v. Central Park Ry. Co., 69 N. Y. 159; Buell v. N. Y. C. R. R. Co., 31 id. 314; Filer v. N. Y. C. R. R. Co., 49 id. 74; Voak v. Northern Cent. R. R. Co., 75 id. 320; Dyer v. Erie Ry. Co., 71 id. 25; Coulter v. Am. Union Express Co., 56 id. 585; Cuyler v. Decker, 20 Hun, 173; Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 218. The deceased was not bound to abandon his horse the moment the train came in sight. Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 212; Bernhardt v. R. & S. R. R. Co., 1 Abb. Ct. App. Dec. 131. It is not to be presumed because there is no evidence affirmatively showing that the deceased either looked or listened, that he did not look and listen. Massoth v. D. & H. Canal Co., 64 N. Y. 529; Ernst v. Hudson River R. R. Co., 39 id. 68. The mere fact that an engineer can demonstrate that from a given point in the highway the track of a railroad is visible for a certain distance, does not necessarily establish that a person in charge of a team approaching the track is negligent because from the point specified he does not see a train approaching at great speed, in time to avoid a collision. Massoth v. D. & H. Canal Co., 64 N. Y. 529; Kellogg v. N. Y. C. & H. R. R. R. Co., 79 id. 72. As the evidence shows that the deceased could not have seen the train under any circumstances, on account of the obstruction created by the brush and nursery, until he reached a point where he was in imminent danger, it therefore availed him nothing if he did look, as it would furnish him with no information which could be of service. Dyer v. Erie Ry. Co., 71 N. Y. 230; Sykes v. D. L. & W. R. R. Čo., 12 N. Y. Week. Dig. 430.

ANDREWS, Ch. J.-We cannot affirm the judgment without ignoring the plain inference of negligence on the part of the plaintiff's intestate, either in omitting to look for the approaching train before reaching the crossing, or if he looked, in omitting to stop his horses before reaching the track of the railroad. The train was in sight for nearly half a mile at a point on the highway more than two hundred and fifty feet north of the crossing, and from a point fifty feet north, to the track, there was an unobstructed view of the railroad to the west for nearly a mile.