ment-roll for that year the name, "Mary J. Jones (heirs)," and assessed her for real estate, $46,600, on which the supervisors levied a tax of $782.88.

The supervisors issued a warrant to the receiver of taxes of Saratoga Springs.

The defendant, Byron J. Town, as receiver, claiming to act under the provision of chapter 68 of the Laws of 1880, advertised the premises so assessed for sale.

John L. Henning, for app'lts; Charles & Lester, for resp'ts.

LEARNED, P. J.-There is no question on the merits of this The only point is whether an action can be maintained to set aside this assessment.

.case.

We have no doubt that the latter clause of § 8, chap. 68, Laws of 1880, gives this right. Temple Grove Sem. v. Cramer, 10 Abb. N. C., 427.

And whatever may be the legal effect of an assessment like the present, it does as a matter of fact create a cloud on the plaintiff's title. She cannot sell with that freedom with which she could sell if it were not for the alleged assessment. Those who desire to purchase are afraid when they see what purports to be an assessment, even though they may be advised that it is void.

If the section above cited is intended to make an exception to the rule which courts have adopted, it is a very excellent exception. And it would be well if the exception should become the general rule.

Judgment affirmed, with costs.
MAYHAM, J., concurs.

PATRICK REDMOND, App'lt, v. THE ROME, WATERTOWN & OGDENSBURG RAILROAD COMPANY, Resp't

(Supreme Court, General Term, Fourth Department, Filed May 23, 1890.) NEGLIGENCE-CONTRIBUTORY.

Plaintiff, who was a conductor on defendant's road, and had been acquainted with the tracks in the yard at Watertown, while his cars were being switched, stepped from the train, and without looking west, walked on or near a parallel track and stood there until struck by an engine backing from the west. He gave no excuse for so doing, except that he was watching a brakeman who was running to throw the switch. Held, that the evidence not only failed to show that plaintiff was free from contributory negligence, but showed gross and inexcusable negligence which resulted in the injury, and that plaintiff was properly nonsuited. APPEAL from a judgment entered in Jefferson county, dismissing the plaintiff's complaint with costs.

Henry Purcell, for app'lt; Edmund B. Wynn, for resp't.

MARTIN, J.-We think the appeal in this case should not prevail. The action was for negligence. The relation of the parties was that of master and servant. The accident which was the sub-ject of the action occurred on the 4th day of June, 1886, at or near the intersection of the defendant's road with Arsenal street, in the city of Watertown, N. Y. The circumstances under which it occurred, briefly stated, were as follows: The plaintiff was a conductor upon one of the defendant's freight trains. On the

day of the accident he ran his train from Watertown to Gouverneur and return. On his return, between six and seven o'clock, in the afternoon, he ran in and switched the cars for the south in the west end of the defendant's yard, leaving two cars and a caboose in the train. When the train reached a point near the water plug, the engine was detached, and the cars were permitted to run down the grade into that portion of the yard where they were to be switched. The caboose, was ahead. As the train reached the point where the accident occurred the plaintiff stepped off, and without looking west walked on or near to a parallel track, and stood there until he was struck and seriously injured by an engine which was backing from the west on that track.

The plaintiff was well acquainted with the yard and its tracks, and had been for many years. He passed the engine by which he was injured while his train was backing into the yard. If he had looked in the direction from which the engine came he would have had no difficulty whatever in discovering its approach, as the track was straight for about a mile. No excuse for standing upon or so near the track without looking to see the approaching engine was given, except that he was watching a brakeman who was running to throw a switch to let the train in on a branch or siding.

The plaintiff claimed that no bell was rung or whistle sounded as this engine approached the crossing; that it was in the hands of a fireman, the engineer having left it; and that the defendant was negligent in retaining such engineer in its employ, as he was an improper person to have the charge or management of an engine, by reason of his accustomed negligence, which was, or should have been, known to the defendant. On the trial, at the close of the evidence, the plaintiff was nonsuited.

As we view this case the only question we need consider is, whether the plaintiff was guilty of negligence which contributed to his injury. If the evidence failed to show that the plaintiff was free from negligence, it follows that the court properly directed a nonsuit, as in an action of this character the burden of establishing affirmatively his freedom from contributory negli gence is upon the plaintiff. Hale v. Smith, 78 N. Y., 480; Lee v. Troy Citizens' Gaslight Co., 98 id., 115; Tolman v. S., B. & N. Y. R. R. Co., id., 198.

The question of contributory negligence is usually a question of fact to be submitted to the jury, still, there may be such an absence of proof of freedom from such negligence, or the proof thereof may be so strong and convincing as to make it the duty of the court to direct a nonsuit or a verdict for the defendant. If the evidenee in this case, either circumstantial or direct, tended to show that the accident occurred without the plaintiff's negligence, a question of fact arose which should have been submitted to the jury. If, on the other hand, the evidence wholly failed to establish the existence of any cause for the accident which was consistent with the exercise of proper care and prudence by the plaintiff, the court properly nonsuited.

It has been repeatedly held that it is negligence per se for a

person to board or alight from a moving train, Burrows v. Erie R. Co. 63 N. Y., 556; Morrison v. Erie R. Co., 56 id., 302; Solomon v. Manhattan R. Co., 103 id., 437; 3 N. Y. State Rep., 636; Hunter v. C. & S. V. R. R. Co., 112 N. Y., 371; 21 N. Y. State Rep., 1, or to attempt to cross a railroad track without looking for approaching trains, Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y., 369; 11 N. Y. State Rep., 169; Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y., 500; 12 N. Y. State Rep., 285; Powell v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 613; 14 N. Y. State Rep., 74; Cullen v. D. & H. C. Co., 113 N. Y., 667; 23 N. Y. State Rep., 719; Bomboy v. N. Y. C. & H. R. R. R. Co., 47 Hun, 425; 14 N. Y. State Rep., 291; Brickell v. N. Y. C. & H. R. R. R. Co., 12 N. Y. State Rep., 450, or to stand between the rails of a side track upon which cars are standing, Van Schaick v. H. R. R. R. Co., 43 N. Y., 527; Toomey v. Turner, 24 Hun, 599, or to be inattentive to his dangerous position when on the track, whether lawfully there or not. Burns v. B. & L. R. R. Co., 101 Mass., 50; Deville v. S. P. R. R. Co., 50 Cal., 583.

We think the doctrine of the cases cited fully sustains the action of the trial court in non-suiting the plaintiff. As we have already seen, the plaintiff had been in the defendant's employ for many years, was thoroughly familiar with its tracks at the place of the accident, and the purpose for which they were used. He knew that engines and trains frequently passed over the track upon or near which he stood. With this knowledge, in broad daylight, without looking or in any way attempting to ascertain whether a train or engine was approaching from the west, he stepped from his train and stood upon or so near the track as to incur the peril of the injury which he sustained. Our general knowledge and common experience leads us to the conclusion that this act was dangerous, and consequently negligent. That it was fraught with danger the plaintiff must have known, and, therefore, he was guilty of negligence, unless his action was explained or justified by special circumstances. We find nothing in this case to explain or justify it. Nothing special had arisen which required unusual attention, or which should have induced the plaintiff's inattention to his own safety. No necessity is shown for his constant watchfulness of the movements of his brakeman in throwing the switch. The act to be performed was a simple one, and presumably the brakeman was competent to perform it.

We are of the opinion that the evidence in this case not only failed to show that the plaintiff was free from contributory negli gence, or the existence of any cause for the accident which was consistent with the exercise of proper care and prudence by him, but that it established conclusively that he was guilty of gross and inexcusable negligence, which resulted in the injury complained of.

These considerations lead us to the conclusion that the court properly nonsuited the plaintiff, which renders it unnecessary for us to examine the other questions presented on this appeal. Judgment affirmed, with costs.

HARDIN, P. J., and MERWIN, J., concur.

EDGAR C. DAVIS, Resp't, v. THE ROME, WATERTOWN & OGDENSBURG R. R. Co., App'lt.

(Supreme Court, General Term, Fourth Department, Filed May 23, 1890.) TRIAL-BURDEN OF PROOF-CRIME AS A DEFENSE IN A CIVIL ACTION NEED NOT BE PROVED BEYOND A REASONABLE DOUBT.

In an action for services as conductor the defense was that plaintiff was guilty of dishonesty in embezzling defendant's funds so as to bar his right of recovery. The court charged that the presumption of law was in favor of plaintiff and that it was not sufficient to find a preponderance of evidence in defendant's favor, but that the jury must find that the evidence satisfied them beyond a reasonable doubt that plaintiff took the moneys and did not report or pay them over before defendant would be entitled to a verdict. Held, error; that a fair preponderance of evidence was all that could be required to establish a criminal act in a civil action.

APPEAL from a judgment entered in Onondaga county on the verdict of a jury, June 6, 1889, and from an order denying a motion for a new trial, made on the minutes of the trial court. Edmund B. Wynn, for app'lt; Stone, Gannon & Petit, for resp't.

MARTIN, J.-This action was to recover for services performed for the defendant by the plaintiff as a conductor on one of its trains. The defense was, that the plaintiff was guilty of such flagrant acts of dishonesty or crime in embezzling the funds of the defendant as to bar his right of recovery. The case was tried and submitted to the jury upon that issue.

In submitting the case to the jury the court charged as follows: "In addition to that, he has the presumption of law in his favor, and in this case the presumption goes something further than what I have had occasion to say to you in other cases where I have simply stated to you that if there was a preponderance of evidence in favor of the party having the burden of proof, then you must find for the party having such preponderance. In this case, where the charge is of a crime, the burden which is laid on the defendant is something more than that, because the real question is the same as if the plaintiff was on trial for theft, and you must find not simply on weighing the testimony that there is a preponderance of evidence in favor of the defendant in this case, but you must find that the evidence satisfies you beyond reasonable doubt that the position which the defendant takes here is the correct one, and that the plaintiff did, on the occasion referred to, take the moneys which have been testified to here, and that he did not report and pay them over. If you are satisfied beyond reasonable doubt that all this is true, then the defendant is entitled to something more than offset of these moneys against the claim of the plaintiff which has been established. The plaintiff will not be entitled to recover at all for his services if you are satisfied that he performed his duties in the dishonest way which the witnesses for the defendant would indicate; and so, gentlemen, you will determine in this case if the evidence satisfies you beyond reasonable doubt, considering the testimony on both sides, and the presumption of law in favor of the plaintiff. I say if the N. Y. STATE REP., VOL. XXXI. 47

testimony here satisfies you beyond reasonable doubt that the plaintiff did receive the moneys as charged here and did not report and pay over those moneys, then your verdict must be for the defendant. If from this evidence you find he received these moneys, but you are not satisfied that he intentionally withheld and failed to pay them over, then the defendant would be entitled to an offset to that extent. If neither of those were found, the plaintiff would be entitled to recover the full amount claimed, $110.87, with interest." To this portion of the charge the defendant excepted.

The effect of the portion of the charge excepted to was to impose upon the defendant the burden of establishing its defense beyond a reasonable doubt. The rule as established by the earlier English cases was, that proof beyond reasonable doubt was usually required to establish a charge of crime in a civil action. This rule has been followed in a number of the states, and seems to have been followed in the earlier cases in this state. Woodbeck v. Keller, 6 Cow., 118; Clark v. Dibble, 16 Wend., 601; Hopkins v. Smith, 3 Barb., 602. But in the more recent cases, especially in this state, it has been held that in a civil action the party upon whom the burden of proof rests as to an issue is not bound to establish it beyond a reasonable doubt. It is sufficient if there is a fair preponderance of evidence in his favor. N. Y. Guar. & Ind. Co. v. Gleason, 78 N. Y., 503, 513; Johnson v. Agricultural Ins. Co., 25 Hun, 251; Freund v. Paten, 10 Abb. N. C., 311; Stearns v. Field, 90 N. Y., 640, 642; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id., 562, 569; People v. Briggs, 47 Hun, 266, 268; 13 N. Y. State Rep,, 365; aff'd, 114 N. Y., 56; 22 N. Y. State Rep., 317; N. Y. & B. Ferry Co. v. Moore, 1 N. Y. State Rep., 374; S. C., less fully, 102 N. Y, 667. In the last case, Judge Earl, who delivered the opinion of the court in that case, said: "There is no rule of law which requires the plaintiff in a civil action, when a judgment against the defendant may establish his guilt of a crime, to prove his case with the same certainty which is required in criminal prosecutions. Nothing more is required in such cases than a just preponderance of evidence, always giving the defendant the benefit of the presumption of innocence. Where a judgment for the plaintiff involves crime or moral turpi tude on the part of the defendant, the court should always require satisfactory proof, and when that has been given judgment should follow, regardless of consequences. In no other way can the law be properly administered and private rights effectually protected." We are of the opinion that the authorities cited are conclusive upon this question, and require us to hold that the exception under consideration was well taken. This leads to a reversal of the judgment and order appealed from.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

HARDIN, P. J., and MERWIN, J., concur.