charge that he was negligent. The plaintiff accelerated speed that they were enabled to says that, when the car which he followed get upon that track and overtake him before slacked up, he looked both ways on the Ful- he passed the outer rail. It may also be obton-Street track, and saw a car drawn by served that the continued succession in the three horses, headed southerly upon the track movement of cars upon the track, and other which he attempted to cross; that it had vehicles upon the street, may have been such come almost to a stand-still 12 or 15 feet from that it did not seem to him prudent on his where he was; that he then started to go way across to stop and deliberately look in across the track, and was knocked down, as all directions, or to turn around to see whethbefore stated. It seems that the car drawn er anything was approaching in the rear. It by the horses which came in collision with cannot as matter of law be held that he him came out of the bridge depot switch on was less alert, under the circumstances, than a curve from the north-east, and entered up he was required to be. There was some conon the Fulton-Street track in front of the flict of evidence on the subject, but, in view three-horse car before mentioned, so as to of that the most favorable to him, it was such drop in behind the car the plaintiff had been as to present a question of fact, and warrant following. He also testified that he did not the finding that the plaintiff was not chargesee the car or lorses by which he was struck able with negligence contributing to the indown, and did not know where it came from. jury. Whether or not, with less interrupIf, when he started from behind the car to tion and greater safety, the plaintiff could cross, he had looked back upon the switch have crossed the street at some other point, track by which the approaching car entered or in some other way have gone to his place that on Fulton street, the plaintiff may have of destination, so far as it had any bearing . seen the car coming. But, seeing the car upon the question of its negligence, was dishalting but a short distance from him, he posed of by the verdict of the jury. He was may have been led to suppose that there was required, for safety, to act upon his judgno danger from any other source in that di- ment, and to use due care to escape danger. rection, and therefore he failed to observe the And to support, upon this review, the ruling car coming on the intermediate entering of the trial court upon the motion for nonswitch, the junction of which with the main suit, it is sufficient that the evidence wartrack, evidently, was near the place from ranted the submission of the case to the jury, which he then started to cross the track. which it clearly did. That situation, in view of the expeditious The defendant's counsel took exception to movement required by him to get across the the reception of opinions of medical witnesstrack, furnished some excuse to the plaintiff es. The physicians attended the plaintiff, for not making a more searching observa- and their evidence was founded upon persontion than he says he did make before starting al examination and observation of his condito cross over to the west side of the street. tion, which they described. It is argued that The distance at that time of the horses of that the evidence was speculative in character, car from him must have been short, as he and to support the objection that it was inwas struck before he was able to completely competent the case of Strohm v. Railroad cross the track on which they came up be- Co., 96 N. Y. 305, is cited as authority, hind and to him. But the fact that the where it was held that opinions of what horses were struck, as the evidence tends to might follow or develop from personal inju. prove they were, by the defendant's track-ries are merely speculative as to the conseman, and by the driver, when they were pro- quences, and lack the requisite element of ceeding on the curve in to the main track, and reasonable certainty to render them admissithus put into rapid movement, lessened the ble as evidence. The statement of the possitime of their approach to the plaintiff, and bility of future consequences of an injury, as for his opportunity to escape by crossing in there properly held, does not necessarily furadvance of them. The situation, as repre- nish any evidence of what will follow. It is sented by one of the plaintiff's witnesses, mere speculation as to what may be the futwas that when the plaintiff “got to the track ure condition of the patient, resulting from nearest the sidewalk the car that struck him an injury, and does not represent the judg. came out of the second switch on the up ment of the expert as to what will be its track." “The right-hand horse was on a effect. That case is not in conflict with the run,-he went faster after the man hit him” earlier ones holding that evidence of the with the iron. The witness thought the driv- probable results of an injury was competent. er struck the horse, and added that the horse Lincoln v. Railroad Co., 23 Wend. 425; Filer which came against the plaintiff was on a v. Railroad Co., 49 N. Y. 42. The evidence run. It may have been inferred from the ev- of that character is dependent upon the opinidence that, but for the increased movement ions of medical experts. It may not be and given to the horses, the plaintiff would have ordinarily is not susceptible of absolute cerescaped theinjury. The conclusion was there- tainty. And their judgment of the probable fore permitted that, when the plair tiff start- consequences comes within the rule of reaed to cross the track, the horses were on the sonable certainty, and therefore of admissiswitch, and not within his observation when (bility. Turner v. City of Newburgh, 109 N. and as he looked down the main track, which Y. 301, 309, 16 N. E. Rep. 344; Griswold v. ue proceeded to cross, and that it was by the Railroad Co., 44 Hun, 236, affirmed 115 N.

An excep

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Y. 61, 21 N. E. Rep. 726. There was no er- this old gentleman (plaintiff] had a right to
ror in the reception of the evidence referred select any point to go across, but he was
to in the present case. It was given as the bound to exercise care commeasurable with
judgment of the witnesses that the injury the circumstances of the case."
was the cause of the condition of the plain- tion was taken to the statement that the
tiff, and that certain consequences would fol- plaintiff had a right to select any point to go
low in relation to his physical health and con- across. It cannot be assumed that the court
dition as the result of the injury, as indicated intended to have the jury understand that
by such condition. And the same may be the plaintiff was at liberty, without preju-
said of the exception taken to reception of dice, to encounter apparent danger, or that
the answer of the doctor to the hypothetical his right upon the street was superior to that
question. Upon the state of facts assumed of the defendant in the operation of its cars,
by the inquiry, it was competent for the wit- but that his right to cross the street was no
ness to state that in his judgment the tremor less at one than at another point, and that it
and the impairment of the nervous system, was for him to determine where he would
with which the plaintiff was afflicted, were seek to exercise the right to do so. The re-
due to the injury. The facts upon which the sponsibility, as the court charged, to exercise
question was based practically excluded all due care rested upon him. That care is as
causes up to the time of the accident, and essential in the outset of the attempt of a
therefore the evidence called for was not spec- person to cross as in the act of crossing, but
ulative. It was offered to show, not merely the exercise of such right must be dependent
that the injury might produce the condition upon his judgment, and the care essential to
or that such a result was likely to follow, but the proper exercise of it involves also the con-
that, in view of such facts, it did cause such sideration of the rights of others, whose du-

ties in that respect on the street are relatively
The further questions, arise upon excep- the same. Moebus v. Herrmann, 108 N. Y.
tions taken to the charge, and to the refusals 349, 15 N. E. Rep. 415. There was no error
to charge as requested. The charge made in this charge.
upon the plaintiff's request, that “the defend The further exceptions to the charge, and
ant had no right to so occupy the street, and to the refusal to charge as requested, involve
use the same with its cars, as to make it ex- only the consideration of the questions of the
tremely dangerous to cross the street at all plaintiff's negligence founded upon his fail-
times,” had relation to the manner of per- ure to look and see the approaching car horses
forming the car service on the street, and, as by which he was injured. This subject has
fairly construed, did not mean that the de- already had some attention. It was his duty
fendant had no right to run so many cars as to look in all the directions from which he
it did there. While interruptions in crossing had any reason to apprehend danger or lia-
it may be necessarily incident to its use in bility to exposure to hazard of injury. He
running cars, there is no such exclusive right evidently did not apprehend the approach of
for that purpose as to render the use of it for the horses behind him. It does not appear
the purposes of travel across it so dangerous that his attention had been called to the
as to practically preclude such use. This switch on which they came. He says he did
was the fair import of the charge, and the ex- not know how those tracks were situated;
ception to it was not well taken.

that he never took notice of them. The sitThe court also charged that “a mere error uation which may have given to him the apof judgment does not necessarily amount to pearance of safety has been before referred carelessness. If the plaintiff took reasonable to. It cannot, under the circumstances, as care, and then made a mistake as to the safest matter of law, be said that he was bound to course to pursue in crossing the street, he is look down upon the switch from which the not guilty of contributory negligence for that car came onto the main track that he was reason." An exception was taken. While proceeding to cross, although whether he did acting on error in judgment under some cir- all that was required of him in lookingcumstances may constitute negligence, such whether, in view of the situation, he did all, is not the necessary consequences of it, under in that respect, essential to reasonable care all circumstances. And as applied to this and due caution on his part—was a question case the charge, as made, was not error, al- of fact for the jury. After an injury has octhough the question, so far as related to the curred, it is not unfrequent that it may be conduct of the plaintiff, was mainly one in- seen how it could have been avoided. But volving that of reasonable care on his part. contributory negligence is not always charge

In the course of the charge to the jury the able upon the failure to exercise the greatest court said: “It was a public street, and he prudence or the best judgment in cases where [plaintiff] had a right to go where he chose; a person is required to act suddenly or in he was to be the judge of that himself;" to emergency. No other exception seems to rewhich exception was taken. And the court quire consideration. The judgment should further charged: "No matter how many cars be affirmed. All concur, except BROWN, J., were in the street, or where the point was, not sitting.

(116 N. Y. 520) John W. LOVELL Co. 0. HOUGHTON et al.1 | disclosed that plaintiff's edition was not an (Court of Appeals of New York, Second Divis- exact copy of the first edition, but contained ion. Nov. 26, 1889.)

alterations and variations which could only LIBEL AND SLANDER- PRIVILEGED COMMUNICA- be found in Mr. Longfellow's revised edition TIONS-MALICE.

of 1869. Thereupon the defendants publish1. A published statement that the publication ed a caution to the trade and public against by plaintiff of certain books, on which the original buying the plaintiff's book, characterizing it copyright had expired, was an infringement of a copyright on a later edition of the books, of which as “a direct infringement of copyright, and a defendants were, and for a long time had been, violation of the rights of Mr. Longfellow's publishers under a contract with the author, is a heirs, and his publishers.” Other facts sufprima facie privileged communication, though the ficiently appear in the opinion. The court later copyright proves to be invalid.

2. In an action for libel by publishing such directed a verdict for the defendant. charge, where the evidence showed that both plain Roger Foster, for appellant. Joseph H. tiff and defendants believed in the validity of the Choate, for respondents. later copyright, and defendants testified that they acted without malice, and solely to protect their interests, and plaintiff did not attempt to show that PARKER, J., (after stating the facts as defendants acted in bad faith, and there was no above.) The learned trial judge held that other proof of malice, the complaint was properly the publication complained of was a privi. dismissed.

leged communication; that the evidence adAppeal from a judgment of the general duced did not justify a finding by the jury term of the superior court of the city of New that the publication was malicious; and direct. . York, affirming a judgment dismissing the ed a verdict in favor of the defendants. complaint, entered upon a verdict for the de- Whether the publication was a privileged fendants, found by direction of the court. communication had an important bearing The action was brought to recover damages upon the question of the sufficiency of plainfor certain written and oral statements made tiff's proof to justify a submission to the jury. by the defendants concerning plaintiff's edi- The publication was prima facie a libel. In tions of two of the poet Longfellow's prose such a case, proof of malice is not required, works, "Hyperion” and “Outre-Mer.” The beyond evidence of the publication itself, beplaintiff claimed the statements to have been cause the law presumes malice. When, false; that they were maliciously made, and however, the publication is in fact a priviresulted in great damage to plaintiff's busi- leged communication, the rule is that upon ness. These books were published by the the plaintiff rests the additional burden of plaintiff in the year 1882. The early edition proving the existence of express malice. of “Hyperion” was published in 1839, and of Klinck v. Colby, 46 N. Y. 427. The rule is “Outre-Mer,” in 1835. It appears, therefore, the same, whether the action be regarded as that the limit of time for the terms of the one for slander of title or for libel simply. copyrights had expired; such limit, together Hovey v. Pencil Co., 57 N. Y. 125. Whether with the renewal permitted, being 42 years. the subject-matter to which the alleged libel But in 1869 Mr. Longfellow obtained a copy- relates, and the interest in it of defendants, right for a revised edition of such works, so are such as to render the publication privithe president of the plaintiff, being unable leged, and therefore prima facie excusable, to purchase a copy of the early edition, sent is a question for the court. Klinck v. Colby, his brother to the library of Harvard Univer- supra. When the facts upon which the desity, with instructions to carefully compare fendants base their claim of privilege is chala copy of the later edition with a copy of the lenged by the plaintiff, it then beiomes the first edition, which was there preserved, and duty of the court to submit the question to to make the former, by alterations, an exact the jury, under proper instructions, to detercopy of the latter. He did not succeed in mine the existence or non-existence of the making it an exact copy, for the book, when facts upon which the privilege is sought to published, contained 183. variations,—varia. be founded. But where, as in this case, the tions made by Mr. Longfellow, and constitut- facts upon which the claim of a privileged ing a part of the ground of his claim for copy- communication is sought to be established right. “Outre-Mer" also contained varii- are uncontradicted, upon the court rests the tions from the original editions, and which duty of determining, as a matter of law, were in defendants' editions. The defend. whether the communication be privileged or ants had been, with their predecessors, for a not. Did the court rightfully determine that long time, the publishers of the works of Mr. question ? Judge FOLGER said, in Hamilton Longfellow, under contract with him with v. Eno, that “the occasion that makes a comrespect to the same, and copyrights thereof, munication privileged is when one has an and were then publishing editions of “Hy-interest in the matter, or a duty in regard to perion” and “Outre-Mer,” revised by Mr. it, or there is a propriety in utterance, and Longfellow, for which a copyright had been he makes a statement in good faith to anothobtained in the year 1869. Immediately after, who has a like interest or duty, or to whom er the publication of plaintiff's edition of a like propriety attaches to hear the ulter“Hyperion,” it was brought to the attention ance." *81 N. Y. 116. Such an occasion is of the defendants. An examination at once where a communication is fairly made by a

person, in the discharge of some public or Affirming 22 Jones & S. 60.

private duty, legal or moral, or in the con


duct of his own affairs, in a matter where his works of Mr. Longfellow, under contract interest is concerned. White v. Nicholls, 3 with him with respect to the same, and the How. 266. In Kinck v. Colby, supra, the copyrights thereof; that at the time of the defendants, having been defrauded of a large publication complained of they were publishamount of goods, and having probable cause ing editions of “Hyperion" and "Outre-Mer," to believe that plaintiff was à party to the as revised by Mr. Longfellow, and for which fraud, signed a paper in which they stated a copyright had been obtained in the year that they had been “robbed and swindled” | 1869; that, before making the publication by plaintiff and others, and agreed to bear complained of, they caused an examination equally the expense of prosecuting the offend of the books issued by plaintiff to be made, ers criminally. The court held, as a matter and found them to contain words and exof law, that the exhibition of the paper to an pressions which were not in the original ediagent of one of the parties defrauded, for the tions, but were in the revised editions,purpose of procuring the signature of the words and expressions which, with others, principal, was privileged. In Wren v. Weild, formed the basis for Mr. Longfellow's claim L. R. 4 Q. B. 730, an action of the same gen- for the copyright obtained. It is quite clear eral character as this, the plaintiff sought to that such proof privileged the communicaestablish his case by showing the invalidity tion, and the learned court was right in so of the patent, which, defendant asserted, deciding. The plaintiff could not destroy the justified the publication of which plaintiff privilege by proof that the copyright was imcomplained. In that case, BLACKBURN, J., properly allowed, or that the works, as re. says: “But we think that as soon as it was vised, were not the subject of copyright shown in evidence that the defendant really The fact that the copyright actually existed, had a patent right of his own, and was as- and that Mr. Longfellow and his publishers serting it, the occasion privileged the com- claimed exclusive rights thereunder, and as, munication, and the plaintiffs were bound to serted them, privileged the occasion, and the prove such malice as would support the ac- plaintiff thereupon became burdened with

In Hovey v. Pencil Co., supra, the the necessity of proving express malice. court says: “If the defendant, believing itself This, we think, it failed to do. It did not to have an exclusive patent, issued such a no- attempt to prove that the defendants knew tice in good faith, as a warning to dealers, that the “revision," so called, was not the against an invasion of its rights, it in so do- subject of a copyright, and that, therefore, ing would only have discharged a moral ob- their assertion of a right, as against the plain ligation, and satisfied the demands of fair tiff, was made in bad faith, or that they had dealing. In such a case, a mistake on its any other motive than that of protecting part as to the validity of its right would not their supposed interest, and that of Mr. Longhave rendered it liable to an action."

fellow. On the other hand, the defendants If, in an action for slander of title, the de- positive testimony is to the effect that they fendant produce the deed under which he believed they had a copyright; that they actmade the assertion of title, the communica- ed without malice, and their sole object was tion is privileged, and the plaintiff must fail, to protect their own rights, and those of Mr. unless he goes further, and proves that the Longfellow's family. It seems to be quite defendant knew that the deed was worthless, apparent from the testimony that not only and made the publication with such knowl- did the defendants believe in the efficacy of edge. So, if an author or book publisher ob- the copyright to protect the alterations and tain a copyright, and thereafter asserts that changes contained in the revised editions, the same book, published by some other per- but that the plaintiff, at the time of publicason, is unauthorized, such publication will tion, entertained the same opinion. “Hybe held to be a privileged communication, perion” was originally published in 1839; and its privileged character cannot be taken “Outre-Mer," in 1835; so that in 1882 the away by proof that it was not the subject of terms of copyright bad expired; the limit of a copyright. The actual existence of a copy- the time, with renewal permitted, being 42 right under which the claim is made will af- years. Plaintiff determined to publish cheap ford protection to the claimant until the plain-editions of these works. It could not find a tiff shall have proven that the claimant had copy of the early edition of “Hyperion” in knowledge of its invalidity, and therefore New York city. A copy of the later edition acted in bad faith. In the case before us, was thereupon obtained, and the plaintiff's the plaintiff proved that in the year 1882 it president sent his brother to the library of published cheap editions of “Hyperion” and Harvard University, where a copy of the

'Outre-Mer;" that immediately thereafter edition of 1839 was preserved, with instructhe defendants published an advertisement in tions to so alter the later edition as to make the Evening Post and Publishers' Weekly, it an exact copy of the first. This he atcharging that the plaintiff's books infringed tempted, but as it subsequently appeared, a copyright which they claimed still existed not very successfully, to do. Why did the in later editions of such works. The result plaintiff take so much trouble in order to proof such publication greatly diminished plain- cure an exact copy of the early edition? But tiff's sales. On the part of the defendants, one answer is suggested by the testimony beit appeared that they and their predecessors fore us, for the reason that the plaintiff, as had been for a long time the publishers of the well as the defendants, believed in the exist

ence and validity of the copyright, in so far salighting at the latter place, he received the as the later alterations and revisions as made injury complained of. The evidence on the by Mr. Longfellow were concerned. Unfor- part of the plaintiff was in conflict with that tunately, Mr. Lovell did not accomplish the introduced by the defendant in respect to the task assigned him with thoroughness, and facts essential to support the charge of negwhen plaintiff's edition was published it was ligence of the defendant, and to relieve the found to contain 183 variations from the plaintiff from the imputation of contributory original edition. They had been made by negligence. The court charged the jury that Mr. Longfellow, and constituted a part of “the question is simply which story is true. the ground of his claim for copyright. They Is the story told by the plaintiff and the witwere at once discovered by the defendants, ness Fox true, or is the story told by the who, because of their relations to the subject, passengers who were called as witnesses for were privileged to make the publication com- the defendant true? If you believe the plainplained of. And the plaintiff is without re- tiff's statement, he is entitled to a verdict. dress, in the absence of proof of express ma- If you find that the accident occurred in the lice on the part of the defendants in its pub- way.stated by the defendant's witnesses, then, lication. The case is barren of facts justify- plainly, * * * the defendant is not liable, ing or permitting an inference of express because the accident was not caused by fault malice. Had it been submitted to the jury, on the part of the railroad company's serywith such a result, it would have been the ants.' The defendant's counsel excepted to duty of the court to have set the verdict the charge that, “if the jury believe the tesaside, as against the weight of evidence. timony of the plaintiff and Mr. Fox, the The rule is that under such conditions the plaintiff is entitled to recover,” and requested court should refuse to submit a case to the the court to charge “that it is for the jury to jury. Wilds v. Railroad Co., 24 N. Y. 433. draw that inference.” The justice presiding There are no exceptions to the admission or then added: “I will leave it for the jury to rejection of evidence wbich call for a reversal. say whether it would not be negligence if he The judgment should be affirmed, with costs. started to get off the train while in motion.” All concur.

The question presented on this review

arises upon such exception to the charge. If (116 N. Y. 546)

there was any opportunity for inference upon McDONALD v. LONG ISLAND R. Co.1

this testimony on the part of the plaintiff, (Court of Appeals of New York, Second Divis- taken as true, that negligence of the defendion. Nov. 26, 1889.)

ant, or the freedom of the plaintiff from conCARRIERS-INJURY TO PASSENGER.

tributory negligence, was not established by Plaintiff's evidence was that as soon as de- it, the charge was error, and, although the fendant's train, on which he was riding, stopped, he arose from his seat, near the front door of the exception was not taken to the charge precar, and proceeded to leave by that door; that cisely as made, it may be treated as fairly when he had placed one foot on the last or lowest raising the question whether the instruction step, and was proceeding to step off the car with was warranted by the facts, as represented the other foot, which was on the step above, he released his hold of the railing, and, the train start- by the testimony on the part of the plaintiff, ing at the same moment with a sudden jerk, he was to which the court referred, which was to the thrown to the ground, causing the injuries sued effect that the plaintiff sat near the front for. Held, that it justified a finding that defendant was guilty of 'negligence, and plaintiff free door of the car; that, as soon as the train therefrom, as the company was bound to give him stopped at the Rockaway-Avenue station, he reasonable time in which to alight.

arose from his seat, and proceeded to leave Appeal from suprimne court, general term, the car by going out of that door; that when second department.

he had placed one foot on the last or lowest Action by Patrick McDonald against the step, and was proceeding to step off the car Long Island Railway Company for personal with the other foot, which was on the next injuries. Defendant appeals from a judg- step above, he was, by a sudden jerk of the ment affirming a judgment entered on å ver-train in starting, thrown to the ground, and dict for plaintiff.

one of his feet was run over, and crushed. Edward E. Sprague, for appellant. J. It is the duty of a railroad company to give Stewart Ross, for respondent.

passengers a reasonable opportunity to leave

its train at stations where it stops, and reaBRADLEY, J. The action was founded sonable diligence on the part of its passengers upon the charge of negligence of the defend-in alighting from it is also required. In this ant, by which the plaintiff sustained personal instance, upon the testimony as given on the injuries. In the evening of April 27, 1885, part of the plaintiff, if taken as true, the conthe plaintiff took passage on à train upon clusion was required that the train did not the defendant's railroad, at Flatbush, to ride stop a reasonable or sufficient time for the

for to a station at Rockaway avenue, and, in plaintiff to leave it before it started, and,

that reason, that the defendant was charge1 Affirming 43 Hun, 637, mem.

able with negligence in that respect, unless " ? On the subject of negligence in alighting from there was some other fact bearing upon that and boarding moving trains, see Railroad Co. v. question for the consideration of the jury. It

(.) Rep. , Railroad Co., (Minn.) 43 N. W. Rep. 1114; Railway is argued that the defendant may have been Co. v. Williams, (Tex.) 8 S. W. Rep. 78, and note. relieved from this charge of negligence by

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