Objection overruled, to which ruling counsel for the owner then and there duly excepted. The witness answered: "My judgment is that the value of the remaining portion would be advanced." Evidence had already been given tending to show that the railroad company contemplated locating a depot in that vicinity.

H. H. Woodard, for applt. Davy & Maurer, for respt. Held, That the evidence objected to is in direct conflict with the provisions of the railroad statute, and was improperly received.

The statute provides that in fix ing the amount of compensation the Commissioners shall not make any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad or improvement connected with such road, for which such real estate may be taken. The true rule of compensation is that the owner should be awarded the market value of the land actually taken, and in addition thereto the depreciation in the market value of the lands remaining as compared with their former market value. 29 Hun, 609–611.

The Commissioners, in their award, stated, that in fixing the amount of such of such compensation they did not make any allowance or deduction on account of any real or supposed benefits which the owner might derive from the construction of the road. It is now contended, on the part of the company, that because of this

statement appearing in the award the error in admitting the evidence was cured.

Held, That the error was not cured by the statement of the Commissioners. They did not state that they disregarded the objectionable evidence, or that it had no influence upon their minds in determining the amount of compensation which ought to be awarded. As was held in 29 Hun, 1, "The presumption is, that all evidence, whether proper or improper, received and retained by a trial court until its decision is pronounced, had its natural effect upon the decision, and that presumption cannot be overcome by any subsequent assertion of the person or persons composing the tribunal by which the decision was made." We think the Court ought not to hold that it is bound by the statement of the Commissioners that they had adopted the basis provided by statute in determining the amount of compensation that ought justly to be made, and cannot correct the error committed.

The appraisal should be set aside and the order reversed with costs of this appeal to appellant, and a re-appraisal ordered before new Commissioners to be appointed by the Special Term.

Opinion by Haight, J.; Bradley, Angle and Childs, JJ., concur.

RAILROADS. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Hannah N. Woodard, admrx.,

respt., v. The N. Y., L. E. & W. RR. Co., applt.

Decided Jan., 1885.

Where defendant was guilty of gross negli

gence in shunting its cars across the street of a populous village, without any person upon them to give warning or exercise

control over their movements, and the deceased, who was carrying a basket of coal, may have had his attention diverted by the moving trains upon the further tracks, etc., Held a proper case for the jury to determine whether plaintiff was chargeable with contributory negligence in not observing the approaching cars before attempting to cross.

Where, in such cases, the court charged that defendant's negligence was established as a matter of law, but no exception thereto was taken, nor did defendant ask the court

to submit the question to the jury, Held,

That error in the charge in reference to sounding the whistle, etc., or as to defendant's negligence, was not available on appeal.

Appeal from judgment entered upon verdict, and from order denying motion for new trial.

Action to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. There is substantially no conflict in the testimony. The intestate lived in Hornellsville, near the railroad track, and was well acquainted with the manner and custom of defendant in moving its cars over the tracks in that vicinity. The injury was received at the crossing at Canisteo street. He and another were engaged in carrying a bushel basket full of coal across the tracks; as they attempted to cross the first track, known as the Osborne House switch, they were struck by some cars which had been shunted down that track and

were running by the force of their momentum, unattended by any person who could give warning or check their progress. The side of the street upon which the deceased approached the track was occupied by a building which came to within thirty-one feet of the track. After passing the corner of this store they had a view of a portion of the track, but not for any considerable distance. After having passed to within fifteen feet of the track they could then see up the track a distance of fiftysix feet, and as they approached nearer they could see farther. The men carrying the coal were walking at the rate of about two miles per hour. The cars, approaching by the force of their own momentum, were running at the speed of between three and four miles per hour. It was a clear day, about noon, and if the deceased had looked in that direction within fifteen feet of the track he could have seen the cars approaching. and thus saved himself from injury. It also appeared that on the fourth track a freight train was passing out of town to the west, and there was some evidence tending to show that upon the third track there were some coal dumps which had been shunted down upon the crossing, and were passing over as the deceased came up to the tracks.

It is contended on the part of appellant that the court erred in refusing to grant a non-suit; that the deceased was guilty of contributory negligence in not having looked or listened before passing

upon the track where he was injured.

applt.

J. H. &C. W. Stevens, for respt. Held, That the case was properly submitted to the jury. The question is not free from difficulty, and we are unable to find any case in this State so nearly in point that we could make it the basis of our decision; they are all distinguishable in some particular. An individual, in approaching a railroad track, must make a vigilant use of his eyes and ears for the purpose of determining whether or not trains are approaching; and on failure to do this he will be chargeable with contributory negligence. He is required to use that care and diligence which an ordinary careful and prudent man would use under like circumstances. There are cases in which a careful and prudent individual approaching the track may have his attention suddenly diverted so as to fail to observe an approaching train. Plaintiff claims that this is such a case. The court submitted the question to the jury whether, under all of the circumstances of the case, a careful, prudent man would have had his attention so diverted as not to observe the approaching cars. Taking into consideration the fact that deceased was engaged in carrying the basket of coal, the moving coal dumps across the street, and the freight train passing west, with its noise, etc., we think the charge was correct; that it became a question for the jury.

lished as a matter of law. The court charged: "It is to be observed that the negligence of defendant is not questioned, and it is to be said that as a matter of law its negligence is established. The statute requires that 'upon every train of cars which passes over any highway crossing at the grade of the highway a bell must be rung, or a whistle sounded continuously for a distance of eighty rods before the crossing is reached.'

These cars undoubtedly constituted a train of cars, and that any whistle was sounded or bell rung on those cars is not pretended. The statute provides that a bell should be placed on each locomotive engine, and rung at a distance of at least eighty rods from the place where the railroad shall cross any public road or street, and be kept ringing until it shall have crossed the same; or a steam whistle should be attached to each locomotive engine, and be sounded at least eighty rods from such road or street, and be sounded at intervals until it shall have crossed the same."

* * *

This charge was not excepted to, nor did defendant ask the court to submit the question of its own negligence to the jury.

Held, That although the charge was in some respects erroneous, defendant cannot now take advantage of the error. See 88 N. Y., 21. The court erred in saying that the whistle should be sounded continuously for the distance of

crossing, and it is possible it also erred in construing the statute to apply to trains being made up or distributed in railroad yards, in which cases they may not move eighty rods distant from any crossing. But we are not satisfied that defendant was prejudiced on account of this reference to the statute; for it was a fact undisputed in the case that defendant shunted these cars across the street of a populous village without any person upon them to give warning or exercise control over their movements. Defendant did not question its negligence on the trial. If defendant had desired to submit to the jury the question of its own negligence, it should at least have called the attention of the court to the matter, when the court observed that the negligence of defendant was not questioned.

Judgment and order affirmed. Opinion by Haight, J.; Childs, J., concurs; Bradley, J., not sitting.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

ination, that the certificate was not competent evidence, either under the Code (§ 928) or at common law, yet, as defendant failed to move to strike it out, but permitted it to stand upon the record, he cannot ask the court to disregard it by reason of his objection made to it on the direct examination.

And although the certificate was not made in conformity to the statute, still if it was an original certificate given at the time of the marriage in the presence of the parties, as it was doubtless understood to be at the time of its admission in evidence, it was competent at common law as part of the res gesta.

Appeal from judgment entered upon the report of a referee.

Action to recover for the value of the board etc., of Harriet, the wife of defendant, from 1875 to 1880. Harriet is plaintiff's daughter. The defense was that she was never married to defendant. The evidence was undisputed that in 1872 Harriet became the mistress of defendant, and from that time until the year 1881 they continued to cohabit together from time to time. Plaintiff claimed and testified that she was married to defendant, Jan. 28, 1875, in Buffalo, by Rev. V. R. Hotchkiss, at his residence on Oak Street. "There was a certificate of marriage given me at the time we were married.

Decided Jan., 1885.

Where a witness testified that a marriage certificate was given her at the time of the marriage, and immediately after said it was given to her afterward, and the referee overruled an objection made to its admission in

evidence, Held, that the referee was warranted in understanding the witness in the

was given by him to me afterward. The written portion of it is in the handwriting of Dr. Hotchkiss. He has since died." Paper purporting to be the marriage certificate offered in evidence. Defendant objected upon the grounds, first, that the certificate is not in the

that it is irrelevant, incompetent