Sweet v. Bean.

dential relation which existed between the parties, cast suspicion upon the transaction, and call for satisfactory explanation from the party who claims for himself profit and advantages growing out of it. It can well be understood, and the evidence warrants the conclusion, that the plaintiffs, although not positively, non compos, yet were under an influence and in a condition of mind to be little able to guard against imposition, or to resist importunity or undue influence. In such case it becomes the duty of the court to criticise the transaction with severity in order to see whether fraud, actual or constructive, has been designed and perpetrated.

Here the defendant was undoubtedly in a position favorable to the carrying out of a fraudulent purpose if so inclined. He had the plaintiffs' confidence. He had the opportunity for advising, raising hopes, and magnifying fears. So it has been said, that a contract obtained from one party so much in the power of the other cannot be sanctioned, if confidence has been abused, if there is inadequacy of price, or if the inference be plain that advantage has been taken of age and imbecility. It is a well settled rule of equity that he who bargains in a matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence. The burden is on the party claiming the advantage, to vindicate his acts. He must show his contract to have been fully understood and comprehended in all its essential bearings, especially when on its face it is marked with peculiarities or points of unreasonableness. In this aspect of the case the defence, I think, fails.

But I am of the opinion that there is direct evidence of imposition and fraud in this case to sustain the judgment. The deed is not in consonance with the alleged agreement, as claimed by the defendant. According to the conveyance the defendant was to have the property in remainder; whereas, both parties assumed that the

Sweet v. Bean.

defendant was to have immediate possession and absolute control. The plaintiff was under mistake, or was deceived in regard to his rights. The obligations of the defendant, as he states them, were not put in writing. Cui bono? Was the misstatement of the alleged contract, in so far as any rights favorable to the plaintiffs were declared in the deed, and the omission of all evidence touching the important duties and obligations of the defendant, honest and fair? Did the defendant state to the old man, as the latter testifies, that the provision for plaintiffs' support was in the deed? The old man had a right to suppose it existed somewhere. True, the defendant denies that he so stated. But under the circumstances of the case, the referee may well have believed the evidence of the former. Not only am I of the opinion that the conclusion of the referee has evidence to support it; but, I think, that any other than that at which he arrived would have been decidedly against the weight of evidence.

The findings of fact are well based on abundant proof, and the conclusions of law, pronounced in the judgment, logically flow from them.

The judgment should be affirmed, with costs.

Judgment affirmed.

[THIRD DEPARTMENT, GENERAL TERM at Albany, March 12, 1874.

Miller, Bockes and Boardman, Justices.]

ANN MORAN, adm'x &c. of James Moran, deceased, vs. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

In an action to recover damages for the killing of the plaintiff's intestate, an employe of the defendant, by a collision caused by the negligence of the latter, evidence was given tending to establish negligence in three particulars: that the train was running at a dangerous rate of speed; that the brakes were imperfect, or out of order; and that the train was insufficiently manned. At the close of the trial, the plaintiff's counsel withdrew the first ground of negligence from the consideration of the jury. The evidence to establish the second and third grounds being very slight; held that it was for the jury to say whether the brakes were defective, or the train insufficiently manned, and also whether those causes, if they existed, produced the injury complained of; and that it could not be claimed that a verdict for the defendant was clearly against the weight of evidence.

Held, also, that the proof showing, plainly, that the great speed of the train was the principal, if not the only, cause of the collision, and that question having been withdrawn from the case, as a ground of recovery, the jury were authorized to find against a right of action, and an order denying a new trial, was properly granted.

Where the trial proceeded on the hypothesis that the deceased was an employe of the defendant, engaged in the business of his employment, at the time of the collision; held, that evidence to prove what the defendant's practice was, as to hanging out signal lights at a certain point, was properly excluded; inasmuch as the omission to give the signal, (conceding that to have been negligence,) was the negligence of a co-employe engaged in the same general employment. And that there being no evidence that the defendant's employes, or any of them, were not skilful and competent, the case was brought directly within the decision in Warner v. Erie Railway Co., (39 N. Y., 468.) And that the negligence of the engineer, in running the train too fast, being the negligence of a co-employe, would, within the principle of that and kindred cases, give to the plaintiff no right of action for that.

Where the subject of great speed was expressly waived as a substantive ground of negligence, on the trial; held, that it could not be urged, upon appeal, as a circumstance of negligence, that the omission of the defendant to place a signal "caused the increased rate of speed."

The defendant's switchman was permitted to state that, in his opinion, the injury was caused by the running of the train with too great velocity. Held, that an objection to this testimony, not specifying any particular ground therefor, was too general to be of any avail.

Held, also, that such testimony was harmless; especially as it stood conceded that the subject of great speed was not to be taken into consideration, as a ground of negligence.

Moran v. New York Central &c. Railroad Company.

PPEAL by the plaintiff from an order denying a new trial on the minutes, and motion for new trial on case and exceptions, ordered to be heard in the first instance at the General Term.

The action was brought to recover damages for the killing of James Moran by the defendant's negligence. Moran was a brakeman on the defendant's road, on a freight train running from West Albany to Syracuse. He lived in the city of Albany, and on the evening of the 27th of May, 1872, he was proceeding to West Albany to join his train, which was to leave soon after eight o'clock. He got on a passing freight train in the city of Albany to go to West Albany, as was the practice of the employes of the road; there to enter upon his duties on his train west.

The train from Albany proceeded with considerable speed to West Albany, where there was "a running switch." The engine ahead was separated from the train, and the train was switched off on a side track on which cars were standing, and, by the collision with the standing cars, the six cars in front of the train were telescoped and Moran was killed.

Evidence was given tending to establish negligence on the part of the company, in three particulars: That the train, at the time of the collision, was running at an improper and dangerous rate of speed; that the brakes were imperfect or out of order; and that the train was insufficiently manned.

At the close of the trial, the plaintiff's counsel withdrew the first above ground of negligence from the consideration of the jury; and the case was submitted on the other two points. The jury found a verdict in favor of the defendant. A motion was made for a new trial on the minutes, which was denied.

The case now comes before the court on appeal from this order; and on a case and exceptions, ordered to be VOL. LXVII.

7

Moran v. New York Central &c. Railroad Company.

heard in the first instance at General Term. (S. C., briefly reported, 3 Thomp. & C., 770.)

A. J. Parker, for the plaintiff.

S. Hand, for the defendant.

By the Court, BOCKES, J. Very much of the evidence given on the trial had reference to the rate of speed at which the train was running at the time of the collision; but the plaintiff's counsel, on the trial, disclaimed all pretence of negligence based on that ground. The withdrawal of this subject as a basis of recovery, leaves the case quite barren of facts on which to found a right of action. There was, indeed, very little evidence tending to show that the brakes were out of order, or that any brake was materially defective; and still less, if indeed there was any, going to show that the train was insufficiently manned. Nor was it made at all clearly to appear that the injury complained of resulted from either of those causes. Hence the case, in its most favorable aspect for the plaintiff, was for the jury, on the facts proved. It was for the jury to say whether the brakes were defective; and whether the train was insufficiently manned, admitting that there was some slight evidence of it; and also whether those causes, if they existed, produced the injury complained of. The evidence bearing on these points was very slight. It cannot be said, with any propriety, that the verdict was clearly against the evidence.

But it is plain to see, on reading the proof, that the great speed of the train was the principal, if not the only cause of the collision. All other causes, if any existed, were insignificant compared with that. The speed was so great that the collision would have resulted had the brakes been in perfect order and the train well manned. It was a heavy train, moving with