have seen its relation to travel and to the city; | less such commissioner had ordered one to be and it is for you to determine, if you reach stationed there. that point, under all the circumstances of the case, whether or not it was negligence, under the instructions I have given you and the evidence, not to have a flagman there." If any fault can be found with this charge, it was too favorable to the defendant, in that it connected the necessity of keeping a flagman at this crossing with the use of ordinary care on the part of Grant. The duty of maintaining a flagman at this point did not depend on the question whether Grant, in this particular instance, could by common prudence have avoided this collision or not. It depended rather upon the situation of the crossing, its relation to the travel upon the street generally, and the facilities afforded, not only the travelers on the street, but the trainmen on the cars, to avoid collisions and accidents of this kind, without a flagman to give warning of approaching trains. I think the jury were warranted in finding it to be negligence in the defendant in not providing a watchman at this point. It seems that to the south from Genesee Street there was a steep up grade, so that a train of loaded cars must, in order to ascend the same, cross the street at a higher rate of speed than would, considering the situation of the crossing, be prudent to the safety of passers on the street without warning of the train's approach. A train coming from the north could not be seen at all by those traveling on the street in the direction Grant was driving, until the traveler was within forty feet of the track, and the train within from 150 to 175 feet of the center of the street; and the engineer on the train, being lower down in his cab than a man in a buggy, could not get his eye into Genesee Street, west of the track, as was the fact in this case, until the locomotive was within sixty or seventy-five feet from the crossing; and then his vision would only extend forty or fifty feet west of the track on the street. Under such circumstances, a train ought to run over this crossing so that it could be stopped at once, or a flagman ought to be stationed where he could give warning of its approach. When an engineer, at a distance beyond seventy-five feet from the crossing of a street in a city like Marquette, cannot see into the street except the straight line thereof where the track crosses, and the traveler cannot see even the top of the locomotive until he gets within forty feet of the track, something more than ordinary pains to prevent accidents is incumbent both on the railroad company and also on the traveler, if such traveler is acquainted with the situation. 7 In Gugenheim v. Lake Shore Railway Company (Mich.) 9 West. Rep. 983, 33 N. W. Rep. at pages 167 and 168, the law in this respect is laid down substantially as the Circuit Judge in this case instructed the jury. The most serious question in the case is the imputed contributory negligence of the driver, Grant. It is claimed by the defendant that Grant was negligent, from his own testimony, and that of one of the persons who was with him, Sundberg, and that a verdict should have been directed for the defendant for this reason. The court below submitted this question to the jury. It appears without dispute that both Grant and Sundberg had been drinking considerably during the day. It was the day of the county fair, and Sundberg had come on the cars from Ishpeming to attend it. Grant had hired the team, in the first place, to take his wife to the fair. In the afternoon he fell in with Sundberg, an old acquaintance of his. He sent his wife home, or up to the fair, a boy by the name of Pritz driving. While waiting for the boy to return, he and Sundberg visited four or five saloons, and drank beer in most of them. When Pritz came back with the horse the three of them went for a drive. It was about 6 o'clock, or a little after, in the evening; but it was not yet dark. Grant sat on the, right-hand side of the carriage, and Sundberg on the left, the boy on their knees, and between them. They came down Champion Street on a trot, and turned into Genesee Street, going east. Sundberg was then, of course, on the north side of the carriage seat, and on the side towards the approaching train. Grant thinks he came to a stop before he came to the track, but he cannot say that he did, "because I ain't sure." Sundberg says: "We didn't drive very fast when we got down to the corner there; down to the railroad track; just trotting along slowly." Jessie Smith, who saw the accident, and was sworn for the plaintiff, says that "They were driving kind of slow trot as they went by the house I saw the buggy come along on a slow trot, and the first thing I knew, I saw the train strike the buggy, or horse." It is plain from all the evidence that the horse was not stopped, but that he was trotting from Champion Street, through Genesee, until the accident. The next question is, Did the driver look? It is, as before said, an established fact in the case that the train could have been seen from any point within forty feet of the track, 179 feet north of the center of Genesee Street. If the train was running twelve miles an hour-the fastest time testified to by any witness-the locomotive would have occupied about ten seconds in passing over this 179 feet. The horse would have reached the track and passed it within that time, if on a trot, the distance being forty feet and the width of the track. In Battishill v. Humphrey, 64 Mich. West. Rep. 806, we held, under the pleadings and testimony in the case, that the absence of a flagman at Summit Avenue crossing in Detroit could not be considered negligence in the railroad company, as the railroad commissioner had not determined that it was necessary to maintain one there. But nothing was said, or It would seem, therefore, to be an absolute intended to be said, in that opinion, that there certainty that if Grant had looked north when could be no negligence, in any case, in not he was forty, thirty or twenty feet from the maintaining a flagman at a street crossing un-track, he would have seen this train. He could, at either of these points, have stopped | person standing on Genesee Street forty feet his horse and saved the accident. When he west of the track, he thought, could not see was within forty feet of the track, the train the top of a locomotive 150 feet up the track must have been in plain sight, or he would to the north, but that he had never tried it to have passed over the track in safety in front see. of it, because he could not have seen it, if it had been more than 179 feet away; and, if so, it would not have struck him, because at twelve miles an hour, or less, it would have required ten seconds or more to reach the place of the accident. If it was in plain sight when he was forty feet away, it was in plain sight from that time until the collision, to one looking north for it. Sundberg swears that he did not look to the north after they passed about the center between Champion and Genesee Streets, until "just as we got up to the railroad track." Then it was too late to stop. Q. If you were looking, couldn't you have seen it, if you had looked, say twenty feet away from the track? A. If we had stopped and looked, I think we could. He further testified, on cross examination, that if the horse had stopped twenty feet away from the track, he thought the train would have been seen; but " 'As long as we didn't see the train we were going ahead. I didn't look and see it in time; not after I looked the first time"-referring to his first look to the north from half way up Genesee Street. From Champion Street to the track crossing Genesee Street is 186 feet. He therefore looked to the north from a point more than ninety feet from the track, where his view of the train was entirely obstructed by the high bank. Sundberg was a stranger to this crossing, and might perhaps be excused from looking again, as he testified that after looking north he looked to the south. Seeing no train approaching from either way, he then looked at the crossing, saw that was clear, and thereafter kept his eyes upon it. The boy Pritz was in Europe at the time of the trial, and was not sworn. Grant testifies: As I approached the track, I saw it ahead. I was looking around to see if anything was moving or coming; looking all over, to see if anything was moving there that I should have to stop for. I did not hear any train coming. I heard nothing. I did not hear any bell ringing, nor any whistle blowing; I should think I would have heard a bell or whistle if there had been one rung or blown. My hearing was good at that time. When I first saw the engine, the horse was just stepping across the track-across the first track. I could not say how near the engine was to the horse at that time, but it could not have been very far. It wasn't far; just close by. I tried to back up to get out of the way, but I could not get out fast enough. There was a bank on the left-hand side along the track where the engine was coming down;" and that a person could not see over the bank to the north, while driving on Genesee Street, and notice a train until the track was reached. This evidence was given before the jury examined the premises. We are impelled to the conclusion that if Grant looked to the north for an approaching train, as he says he did, he did not so look after he came within forty feet of the track. He must have looked back somewhere near where Sundberg did, and where the bank obscured his vision. Grant was not a stranger to this crossing, and the question arises, Was his full duty performed? We think not. Was he acting with even ordinary prudence, when he was driving this forty feet without looking to the north? Could he excuse himself by looking north, where he knew the high bank cut off his view, and then drive straight on to the track, without looking again, when the track was in sight to the north, because he heard, as he says, no bell or whistle, or noise of an approaching train? We think the answer must be in the negative. A railroad track is a perpetual menace of danger, and the traveler is not excused if his eyes and ears are not kept open up to such distance of it that he may stop if he can see or hear its approach. If he had looked at any time within the forty feet before he drove his horse upon the track, we think he must inevitably have seen this train, and could have saved a collision; and that, knowing the situation at the crossing as he did, he was guilty of contributory neg ligence in not doing so. There is a fair inference to be drawn from his own testimony, and that of his companion Sundberg, that both had drank so much that they did not exercise the usual caution that a sober man uses in such an emergency; and that the recklessness of too much drink, though neither might be called drunk, had something to do with their neglect to take ordinary precaution and prudence in attempting to make this crossing. The conclusion is irresistible, that they drove down Genesee Street upon a trot, and, without looking to the north, when they ought to have done so, ran the horse negligently and carelessly on the track and in the way of the locomotive. It is no answer to say that if the company had not been negligent in the matter of a flagman the accident would not have happened. It must be considered, as before said, that the jury determined that there was no negli gence on the defendant's part in relation to the blowing of the whistle and the ringing of the bell. The testimony was conflicting on these points, and the jury evidently found against the plaintiffs in this respect. If Grant had exercised common, ordinary prudence at this known to him to be a dangerous crossing, the collision would not have taken place. The company was at fault in not having a flagman, and he was at fault in being careless and reckless in his driving, without looking, as he ought to have looked. His fault contributed to the injury, and he cannot recover, unless the defendant was guilty of such reckless negOn cross examination he testified that aligence in the premises that the question of contributory negligence cannot arise in the case, as in Battishill v. Humphreys (Mich.) 14 West. Rep. 863. The testimony, in our opinion, did not show such reckless and wanton negligence on the part of the defendant as would acquit the plaintiff of his fault. A verdict should there- Long, J., did not sit. The other Justices concurred. NEW YORK COURT OF APPEALS. Re Henry P. EYSAMAN'S WILL. (......N. Y.......) 1. Material evidence erroneously admit- 2. An objection to evidence as "incompetent 4. A legatee who supported the testator make a 'legatee who is not a subscribing witness competent to testify to a personal transaction or communication with the testator, contrary to section 829. (March 12, 1889.) APPEAL by contestants, from a judgment of the General Term of the Supreme Court, Fourth Department, affirming a decree of the Herkimer County Surrogate's Court admitting to probate the last will and testament of Henry P. Eysaman, deceased. Reversed. The facts are fully stated in the opinion. Messrs. Smith & Steele, for appellants: The execution of the will is not proven by two witnesses. It does not appear that Barse saw the signature, or that it was pointed out or recognized by the deceased. See Re Mackay, 110 N. Y. 611, 1 L. R. A. 491. Merely signifying assent by a nod of the head, in response to questions, is not enough. If the will is signed in the presence of the witnesses, slight recognition may be sufficient. Here the signature was attached before Barse was called. The attestation clause is not true; it was not scribing witnesses attending the attestation and signed, sealed or published in the presence of publication of the will. The whole matter of the execution of the will constitutes but a single transaction, and he is therefore incompetent to testify to any part of it. 5. New York Code of Civil Procedure, § 2544, providing that "A person is not disqualified or excused from testifying respecting the execution of a will by a provision therein, whether it is beneficial to him or otherwise," refers to subscribing witnesses alone, and does not NOTE.--Disqualification of witness under the Code. A witness to a will is not disqualified by reason of having hired personal property, belonging to the estate, from the executor. Seguine v. Seguine, 2 Barb. 385. Sections 50 and 51 of the Revised Statutes were enacted, first, to render competent a witness who would otherwise not have been so; and secondly, to guard against fraud in the preparation and execution of wills. Du Bois v. Brown, 1 Dem. 317. Where the probate was not contested and the third attesting witness to the will was not sworn, the record of the testimony of the other two attesting witnesses, taken by the surrogate, is competent evidence to show that the will was proved without his testimony. Caw v. Robertson, 5 N. Y. 125, reversing 3 Barb. 410. Such third attesting witness, not having been sworn or examined as a subscribing witness to the will, was not therefore deprived of his legacy. lbid. The bequest is not void, even if he is examined, if the will was sufficiently proved without his testimony. Cornwell v. Wooley, 1 Abb. App. Dec. 441; 43 How. Pr. 475, affirming 47 Barb. 327. Where a witness, disqualified from taking a leg Barse. See Mitchell v. Mitchell, 16 Hun, 97, affirmed in 77 N. Y. 596; Sisters of Charity v. Kelly,67 N. Y. 409; Heath v. Cole, 15 Hun, 100; Howland Barb. 250; Willis v. Mott, 36 N. Y. 486; dictum v. Taylor, 53 N. Y. 627; Reynolds v. Root, 62 overruled in Re Mackay, supra; Neugent v. Neugent, 2 Redf. 369; Chaffee v. Baptist Missionary Convention, 10 Paige, 91; Remsen v. acy, was one of the next of kin, the valid legacies must abate so far as necessary to allow him to take his full distributive share, as in case of intestacy of the testator. Re Smith's Estate, 1 Tuck. 83. A bequest to an executor in addition to commissions or his appointment as legatee in trust or trustee of real estate, for the purposes of the will, is not a beneficial provision which is forfeited by his acting as witness and testifying to prove the will. Pruyn v. Brinkerhoff, 7 Abb. N. S. 400; 57 Barb. 176. The fact that an executor will be entitled to commissions will not make him a beneficiary so as to prevent his testifying under section 829, nor although it provides that he is to have an additional sum for services in caring for and settling the estate. Reeve v. Crosby, 3 Redf. 74. A person named as executor in an instrument propounded as a will is a competent witness. Children's Aid Society v. Loveridge, 70 N. Y. 387; Levy's Will, 1 Tuck. 87; McDonough v. Loughlin, 20 Barb. 238. He is a competent witness after he has renounced his executorship. Burritt v. Silliman, 13 N. Y. 93, 16 Barb. 198. Brinckerhoff, 26 Wend. 331; Rutherford v. Rutherford, 1 Denio, 33; Belding v. Leichardt, 56 N. Y. 680; Lewis v. Lewis, 11 N. Y. 225; Re Phillips, 98 N. Y. 267; Baskin v. Baskin, 36 N. Y. 416; Woolley v. Woolley, 95 N. Y. 235. Inability to remember an essential testament ary declaration in the case of a will lately executed is fatal, and the inability cannot be supplied by a false attestation clause. Wilson v. Hetterick, 2 Bradf. 427; Rutherford v. Rutherford, 1 Denio, 33; Seymour v. Van Wyck, 6 Ň. Y. 120; Scribner v. Crane, 2 Paige, 147. The change effected by the will, from giving a deed of 100 acres of land for a discharge of the claims, as testified to by Ware, amounted to near $24,000; and was so radical and sweeping that it cannot be credited. McLaughlin v. McDevitt, 63 N. Y. 212; Children's Aid Society v. Loveridge, 70 N. Y. 402; Delafield v. Parish, 25 N.Y. 35; Marsh v. Tyrrell, 2 Hagg. Eccl. 87, 110; Blewitt v. Blewitt, 4 Hagg. Eccl. 463; Van Guysling v. Van Kuren, 35 N. Y. 70. The fact that the draughtsman of the will was the attending physician calls for close scrutiny. The jealous precautions taken to exclude everybody but the chief beneficiary and the executor during the conferences of the days preceding the death of Mr. Eysaman, emphasize this consideration. This careful and continued secrecy is a badge of fraud. McGuire v. Kerr, 2 Bradf. 245; Mowry v. Silber, 2 Bradf. 133; Tyler v. Gardiner, 35 N. Y. 559, 591; Lake v. Ranney, 33 Barb. 49; Nexsen v. Nexsen, 2 Keyes, 229; Crispell v. Dubois, 4 Barb. 393; Re Smith's Will, 95 N.Y. 516. The testimony given by Ware was incompetent under section 829 of the Code. Holcomb v. Holcomb, 95 N. Y. 316; Lane v. Lane, 95 N. Y. 494; Re Smith's Will, 95 N. Y. 516; Schoonmaker v. Wolford, 20 Hun, 166; Cadmus v. Oakley, 3 Dem. 324. Mr. J. D. Henderson, for respondent: The legal presumption is in favor of competency. Coit v. Patchen, 77 N. Y. 533: Delafield v. Parish, 25 N. Y. 70; Van Guysling v. Van Kuren, 35 N. Y. 70. This will was properly executed, within all the cases. Baskin v. Baskin, 36 N. Y. 416; Jackson v. Jackson, 39 N. Y. 153. If Barse has forgotten some of the things which occurred at the time, his failure to recollect will not defeat the probate. Rugg v. Rugg, 83 N. Y. 592; Re Kellum, 52 N. Y. 517; Re Higgins, 94 N. Y. 554; Brown v. Clark, 77 N. Y. 369; Re Cottrell, 95 N. Y. 330. It was proper to call James Ware, although a legatee under the will, to give his version of the transaction testified to by the contestants' witness, Horace Eysaman; and he was competent under section 829 of the Code. Marsh v. Brown, 18 Hun, 319, 323; Smith v. Christopher, 3 Hun, 586; Code, § 2544. The evidence was competent as the question called only for things concerning which the witness took "no part in whatever." Pinney v. Orth, 88 N. Y. 451; Simmons v. Sisson, 26 N. Y. 277; Hildebrant v. Crawford, 65 N. Y. 107; Cary v. White, 59 N. Y. 336; Holcomb v. Holcomb, 95 N. Y. 325. Mr. C. J. Palmer, for proponents and James Ware: When an attestation clause is read in the presence of deceased and the attesting witnesses, and shows on its face that all the requirements of law were observed, which are prescribed for the due execution of a will, and it is proven that the signatures of the subscribing witnesses to the attestation clause are genuine, and the execution is proven by circumstances or by other witnesses, a decree may be based on such proof, even as against the positive testimony of the subscribing witnesses. Re Cottrell, 95 N. Y. 329; Lewis v. Lewis, 11 N. Y. 224. A full attestation clause, properly authenticated, is entitled to great weight in the determination of the question of fact. Re Cottrell, 95 N. Y. 335; Orser v. Orser, 24 N. Y. 55; Blake v. Knight, 3 Curteis, Eccl. 547. Even if Barse had forgotten, or from perversity had denied the execution, still the question of execution would be a fact, and the decision of the surrogate final upon the fact. Re Cottrell, 95 N. Y. 338; Re Higgins, 94 N. Y. 557; Code, § 2620; Brown v. Clark, 77 N. Y. 369; Rugg v. Rugg, 88 N. Y. 592, affirming 21 Hun, 383; Auburn Theological Sem. v. Calhoun, 25 N. Y. 425. If the testimony of Barse was dropped entirely from the case, if he had forgotten the fact of execution, as well as some of the language,-still the will must be admitted to probate upon the testimony of Sharer and Ware, which is uncontradicted in fact. Lewis v. Lewis, 11 N. Y. 220; Auburn Theological Sem. v. Calhoun, 25 N. Y. 425; Re Cottrell, 95 N. Y. 329. Upon the issue of undue influence the burden is upon the party alleging it. Re Martin, 98 N. Y. 193; Tyler v. Gardiner, 35 N. Y. 559; Delafield v. Parish, 25 N. Y. 35; Coit v. Patchen, 77 N. Y. 539. It is a question of fact, and having been determined must stand. Carpenter v. Soule, 88 N. Y. 257. It was proper for Dr. Sharer to steady Eysaman's hand at his request, or to write the subscription. Campbell v. Logan, 2 Bradf. 95; 1 Redfield, Sur. 159; Rev. Stat. 7th ed. p. 2286. The testimony not only shows the writing by deceased, but an acknowledgment that the subscription is his. The acknowledgment alone is sufficient if it appears that he saw and knew it. Hoysradt v. Kingman, 22 N. Y. 372; Baskin v. Baskin, 36 N. Y. 416. Ware did not engage in the conversation at declaration of the will, but testified to what he heard. He was competent to speak. Hildebrant v. Crawford, 65 N. Y. 107, affirming 6 Laus. 502; Patterson v. Copeland, 52 How Pr. 460. Ruger, Ch. J., delivered the opinion of the court:" The probate of the will of Henry P. Eysaman was contested before the surrogate by some of his heirs and next of kin upon the 1889. Re EYSAMAN'S WILL. ground of undue influence, the want of a sound disposing mind and memory, and the absence of sufficient proof of due execution by the testator. The main question now presented is whether James Ware, the principal legatee, was competent to testify to the transactions preceding, attending and succeeding the execution of the will, and, if not, whether his evidence on those subjects necessarily prejudiced the contestants The in the controversy before the surrogate. allegation of undue influence was not supported by sufficient evidence to authorize us to review the finding of the surrogate upon that question; and the inquiries must now be addressed to the questions of due execution and the existence of testamentary capacity at the time of its execution, as affected by the evidence of Ware. The decree of the surrogate admitted the will to probate, and his decision was affirmed on appeal by a divided court. The will purported to have been executed on Sunday, April 27, 1884, and the testator died on Thursday, four days thereafter, of uræmia, or blood poisoning, at the age of seventy-eight years. The material evidence bearing upon the questions of mental and physical condition related mainly to the period of one week preceding the testator's death. The evidence showed that the testator was afflicted with gravel or retention of urine, and had been in failing health for about two months before his death, being much of the time confined to his bed, and during the last week of his life wholly so. Up to Saturday the evidence shows that he was, although feeble, apparently conscious, talking occasionally with visitors and attendants, and able to transact some business, and to give orders concerning the management of his ordinary affairs. On Saturday, after engaging in two transactions, he claimed to be too much exhausted to do any more that day. Thereafter he undertook no business transaction, except that of the execution of his will, and his physical condition seems to have become | weaker. He talked but little, if at all, and gradually declined, until he died. His physician testified that on Monday he observed symptoms of the suppression of urine, which became quite pronounced on Tuesday, and were accompanied by drowsiness and coma which generally prove fatal in from two to five Others days after such symptoms appear. testify that some of these symptoms were observable on Sunday, some name. No witnesses, except Sharer and Ware, testify that after Saturday night he engaged in in any rational conversation, beyond occasional calls for nourishment or attempting to utter This conversation attending the publication of the will was testified to by Sharer and Ware alone, and their version was much impaired, if not contradicted, by Barse, the only other person who was present at the the time. Many persons saw him between Saturday and the day of his death; but none of them testify to any material conversation had by him, except Sharer and Ware, although other persons were present at most of the occasions described by them. The conversation taking place at the time of the execution of the will, as testified to by Sharer, who drew it, consisted almost wholly Repeating the conversation, he further tes- Mr. Ware held him up-stood by the The will side of the bed with his arms around his back. I think he used his left arm. that time was lying on a book. I held the book by either the right or left arm . . . I had hold of his wrist, back of the bone of his thumb; I steadied his hand." Mr. Barse, the other attesting witness, testified substantially as follows: Q. Mr. Eysaman didn't tell you this was his last will and testament? A. No sir. Q. And he didn't ask you to sign it as a witness? A. Not in words. Q. Did Mr. Eysaman ask you to sign his will at all as a witness, in words? A.' No sir. Q. Did Mr. Eysaman say to you at all that he had signed this will? A. No sir. Q. Did he acknowledge to you in words that it was his signature to the will, or did he say in words to you that it was his signature to the will? A. No sir. Q. Did you hear any conversation at all, that you can now recollect-any conversation or words used by Mr. Eysaman on that occasion, that you can now recollect? A. No sir. Q. You saw no other sign of attention than by the nodding of the head? A. No sir. |