Willard v. Merritt.

than wool in good order. The wool was folded in such a manner as to present the appearance of washed wool, and the fraud was first suspected by the plaintiff's agent, who, on comparing his books in the evening after the delivery, observed that the average weight of the fleeces was greater than in the previous year, and, therefore, made an examination of the wool. The plaintiff brought his action for fraud, in the delivery of the wool, and on the trial had a verdict for $135.95.

Several exceptions were taken on the trial, which were ordered to be heard at a general term, in the first instance.

G. H. McMaster, for the plaintiff.

Geo. B. Bradley, for the defendant.

By the Court, JOHNSON, J. The action was for a fraud in the sale of a quantity of wool. The alleged fraud consisted mainly in the delivery of several ounces of unwashed tags and dirty wool, concealed in the inside of each fleece, as good marketable wool, under a contract for the sale of such wool previously made. The question of fraud was fully and fairly submitted to the jury, and no exceptions were taken to the charge. At the close of the plaintiff's evidence, the defendant's counsel moved for a nonsuit upon several grounds, only two of which are now insisted upon. These are: 1. That inasmuch as the plaintiff's agent, at the time the wool was delivered, had an opportunity to examine the same, and the defendant neither did nor said any thing to mislead, the action can not be maintained; and 2. That the delivery of the wool being upon an executory contract of sale, the plaintiff's only remedy was to return the property so delivered or give notice that it would not be accepted upon the contract, within a reasonable time after the delivery, in case it did not come up to the requirements of the contract; and that an action for fraud in such a case will not lie. In respect to

Willard v. Merritt.

the first proposition, it is enough to say, that there is evidence on the part of the plaintiff to show, that when the defendant delivered the wool, he declared expressly that it was in good condition, and that it appeared to be so on the outside, as the fleeces were done up. The jury, therefore, had the right to find, from the evidence, that the defendant deceived and misled the plaintiff's agent in respect to the quality and condition of the wool inside. Whatever may be the rule in regard to the duty of the purchaser to examine for himself, where no questions are asked by him and nothing said or done by the seller to mislead or deceive, it is clear enough that the purchaser has the right to trust to the declaration of the seller as to the condition of the thing purchased, and omit to make any examination, without losing his right to maintain an action for fraud in case fraud is practiced by the seller. In respect to the second proposition, it is only necessary to say that it is not the law. It may be that an action will not lie for a breach of the contract in such a case, after the property has been accepted in fulfillment of it, as was held in Reed v. Randall, (29 N. Y. Rep. 358.) But it is quite obvious that the acceptance of the goods, in such a case, can never operate as a waiver, or discharge, of a fraud practiced by the seller upon delivery, to induce such accept

ance.

In view of the charge made by the court, it is very clear, I think, that none of the exceptions taken to the refusal to charge as requested are well taken. The court charged that

it was a question of good faith, and that if the defendant had acted in good faith in putting up and delivering the wool, and only put in such as he had reason to believe and did honestly believe was in accordance with the contract, he was not liable in the action. The court also charged, that if the defendant had acted in bad faith in putting in this unmarketable wool, and concealed it in such a manner as not to awaken any suspicion, for the purpose of deceiving and defrauding, and did thus deceive and defraud, he would be

Willard v. Merritt.

liable in the action. As before remarked, the charge is not excepted to. I do not discover any evidence in the case on which the first request could be based. It is not pretended that the plaintiff's agent was told, or had any intimation as to the condition of the packages, inside. Nor is there any evidence tending to show that the appearance outside indicated in any way what was enfolded within. There is nothing to show that the extra twine entered into the verdict, and if it did, it was so inconsiderable in amount that an error in that regard would not justify the granting of a new trial. Nor did the knowledge of the plaintiff's agent that the sheep had been upon the ploughed ground, as testified to, call for any particular examination of the wool inside, if it appeared all right upon the outside, and more especially if the defendant declared it to be in good condition.

The evidence objected to by the defendant's counsel, and received, upon the subject of the custom of putting up wool, in that section of the country, was proper on several grounds. First, in answer to similar evidence given by the defendant. And second, it was clearly admissible on the question of a fraudulent intent in putting the tags inside of the fleece, in that manner.

On the whole, the case seems to have been fairly tried and submitted, and I am of the opinion that a new trial should be denied and judgment ordered for the plaintiff on the verdict.

[MONROE GENERAL TERM, March 5, 1866. Welles, E. Darwin Smith and Johnson, Justices.]

WARNER US. THE NEW YORK CENTRAL RAILROAD COMPANY.

After evidence has been already given, in an action against a railroad company to recover damages for an injury arising from a collision between the defendant's cars and the plaintiff's wagon, at a street crossing, tending to show that on the occasion of the collision the flagman stationed there was intoxicated, and was absent from his post of duty, it is proper for the plaintiff to show that the flagman had, for some weeks before the occurrence, been indulging in habits of intemperance, so as to unfit him for the duties of his station; as bearing to some extent on the question of the defendant's carelessness. When a railroad company has adopted the precaution of keeping a flagman at a particular crossing, as a mode of giving notice of the approach of trains,. and has continued the custom for several years, the absence or presence of the flagman at his post, is a circumstance which the public has a right to notice and to take into the calculation of the measure of safety in crossing the railroad track at a given time.

Under such circumstances, the public have the right to suppose that no train is due or approaching, if the flagman is absent from his post.

If the place where a railroad track crosses a highway is a place of danger, so much so that the corporation has voluntarily undertaken the duty of keeping a watchman there, and has continued it, through a series of years, until the public has become accustomed to regard his presence, or absence, as one of the evidences of the approach of trains, or otherwise, it is a part of their duty to keep a fit person, whose conduct will not be liable to mislead and deceive the traveling public.

A railroad corporation, by acquiring the right to construct its road across a highway, and obtaining title to the land for its road bed, does not destroy or impair the public easement. The perfect and unqualified right of every citizen to pass over the road at that point remains the same as before. It is not a question of superior, or subordinate right, in passing, which arises in an action for damages occasioned by a collision between a locomotive on the railroad and a vehicle upon the highway, but a question merely of the exercise of suitable caution and prudence, by either party in the exercise of a common and equal right.

In such an action it is proper for the court to hold, that the railroad company is bound to exercise a proper degree of care and prudence towards the traveling public.

A

PPEAL from an order made at a special term, denying a

motion for a new trial on a case made by the defendant. The complaint alleged the incorporation of the defendant. That its railroad runs in a southwesterly direction from the city of Rochester, passing through the town of Gates. That there is a highway running westerly from the city of Roch

Warner v. New York Central Railroad Company.

ester, which is crossed by the railroad a short distance from the west line of the city, upon a level with the railroad. That the defendant had been in the habit of keeping a flagman at this station to warn persons crossing of the approach of trains. That for some time previous to the alleged injury, such flagman had been frequently intoxicated and unfit for his duties, to the knowledge of the defendant, and at the time of the alleged injury, was absent from his post. That on the night of the 23d of November, 1863, the plaintiff was traveling eastward in a buggy, along said highway, and when upon this crossing the defendant carelessly and negligently ran its locomotive and train of cars, going in a northeasterly direction, without giving any siginal, upon the horse and buggy of the plaintiff, and thereby fractured the plaintiff's hip and ruptured his abdomen, and injured his horse and buggy, by reason of which he sustained damages to the amount of $20,000. The answer denied the complaint, and alleged that said injuries were caused by the want of care of the plaintiff, and without the fault of the defendant. case was tried at the Monroe circuit, before the Hon. E. DARWIN SMITH, in January, 1865, and a verdict was found for the plaintiff for $5000.

The

In addition to the general verdict, the jury found, upon the specific questions submitted to them,

1. That the injury resulted from the collision with the train by the negligent act of the defendant.

- 2. That it resulted from the fright of the plaintiff's horse by the negligent act of the defendant.

3. That it resulted from both of these causes combined.

A. P. Laning, for the appellant.

J. H. Martindale, for the respondent

By the Court, JOHNSON, J. There was no request by the defendant's counsel to have the plaintiff nonsuited, or to have