he passed the outer rail. It may also be observed that the continued succession in the movement of cars upon the track, and other vehicles upon the street, may have been such that it did not seem to him prudent on his way across to stop and deliberately look in all directions, or to turn around to see whether anything was approaching in the rear. It cannot as matter of law be held that he was less alert, under the circumstances, than he was required to be. There was some conflict of evidence on the subject, but, in view of that the most favorable to him, it was such as to present a question of fact, and warrant the finding that the plaintiff was not chargeable with negligence contributing to the injury. Whether or not, with less interruption and greater safety, the plaintiff could have crossed the street at some other point, or in some other way have gone to his place of destination, so far as it had any bearing upon the question of its negligence, was disposed of by the verdict of the jury. He was required, for safety, to act upon his judgment, and to use due care to escape danger. And to support, upon this review, the ruling of the trial court upon the motion for nonsuit, it is sufficient that the evidence warranted the submission of the case to the jury, which it clearly did. 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 Fulton-Street track, and saw a car drawn by three horses, headed southerly upon the track which he attempted to cross; that it had come almost to a stand-still 12 or 15 feet from where he was; that he then started to go across the track, and was knocked down, as before stated. It seems that the car drawn by the horses which came in collision with him came out of the bridge depot switch on a curve from the north-east, and entered upon the Fulton-Street track in front of the three-horse car before mentioned, so as to drop in behind the car the plaintiff had been following. He also testified that he did not see the car or horses by which he was struck down, and did not know where it came from. If, when he started from behind the car to cross, he had looked back upon the switch track by which the approaching car entered that on Fulton street, the plaintiff may have seen the car coming. But, seeing the car halting but a short distance from him, he may have been led to suppose that there was no danger from any other source in that direction, and therefore he failed to observe the car coming on the intermediate entering switch, the junction of which with the main track, evidently, was near the place from which he then started to cross the track. 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 injuprove 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 judgcame 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 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 the injury. The conclusion was there- tainty. And their judgment of the probable fore permitted that, when the plaintiff 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. he proceeded to cross, and that it was by the Railroad Co., 44 Hun, 236, affirmed 115 N. | Y. 61, 21 N. E. Rep. 726. There was no error in the reception of the evidence referred to in the present case. It was given as the judgment of the witnesses that the injury was the cause of the condition of the plaintiff, and that certain consequences would follow in relation to his physical health and condition as the result of the injury, as indicated by such condition. And the same may be said of the exception taken to reception of the answer of the doctor to the hypothetical question. Upon the state of facts assumed by the inquiry, it was competent for the witness to state that in his judgment the tremor and the impairment of the nervous system, with which the plaintiff was afflicted, were due to the injury. The facts upon which the question was based practically excluded all causes up to the time of the accident, and therefore the evidence called for was not speculative. It was offered to show, not merely that the injury might produce the condition or that such a result was likely to follow, but that, in view of such facts, it did cause such condition. this old gentleman [plaintiff] had a right to The further questions arise upon exceptions taken to the charge, and to the refusals to charge as requested. The charge made 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 failtimes," 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 fairly construed, did not mean that the defendant had no right to run so many cars as it did there. While interruptions in crossing it may be necessarily incident to its use in running cars, there is no such exclusive right for that purpose as to render the use of it for the purposes of travel across it so dangerous as to practically preclude such use. This was the fair import of the charge, and the exception to it was not well taken. by which he was injured. This subject has already had some attention. It was his duty to look in all the directions from which he had any reason to apprehend danger or liability to exposure to hazard of injury. He evidently did not apprehend the approach of the horses behind him. It does not appear that his attention had been called to the switch on which they came. He says he did not know how those tracks were situated; 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. volving that of reasonable care on his part. In the course of the charge to the jury the court said: "It was a public street, and he [plaintiff] had a right to go where he chose; he was to be the judge of that himself;" to which exception was taken. And the court further charged: "No matter how many cars were in the street, or where the point was, But contributory negligence is not always charge- (116 N. Y. 520) LIBEL AND SLANDER-PRIVILEGED COMMUNICA- 1. A published statement that the publication by plaintiff of certain books, on which the original copyright had expired, was an infringement of a copyright on a later edition of the books, of which defendants were, and for a long time had been, publishers under a contract with the author, is a prima facie privileged communication, though the later copyright proves to be invalid. 2. In an action for libel by publishing such charge, where the evidence showed that both plaintiff and defendants believed in the validity of the later copyright, and defendants testified that they acted without malice, and solely to protect their interests, and plaintiff did not attempt to show that defendants acted in bad faith, and there was no other proof of malice, the complaint was properly dismissed. disclosed that plaintiff's edition was not an exact copy of the first edition, but contained alterations and variations which could only be found in Mr. Longfellow's revised edition of 1869. Thereupon the defendants published a caution to the trade and public against buying the plaintiff's book, characterizing it as "a direct infringement of copyright, and a violation of the rights of Mr. Longfellow's heirs, and his publishers." Other facts sufficiently appear in the opinion. The court directed a verdict for the defendant. Roger Foster, for appellant. Joseph H. Choate, for respondents. the plaintiff rests the additional burden of proving the existence of express malice. Klinck v. Colby, 46 N. Y. 427. The rule is the same, whether the action be regarded as one for slander of title or for libel simply. Hovey v. Pencil Co., 57 N. Y. 125. Whether the subject-matter to which the alleged libel PARKER, J., (after stating the facts as above.) The learned trial judge held that the publication complained of was a privileged 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 plaintiff in the year 1882. The early edition of "Hyperion" was published in 1839, and of "Outre-Mer," in 1835. It appears, therefore, that the limit of time for the terms of the copyrights had expired; such limit, together with the renewal permitted, being 42 years. 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 becomes 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 varia- 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 utter"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 private duty, legal or moral, or in the con 1Affirming 22 Jones & S. 60. 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 a 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 communica establish 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 resays: "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 tion." In Hovey v. Pencil Co., supra, the the necessity of proving express malice. court says: "If the defendant, believing itself to have an exclusive patent, issued such a notice in good faith, as a warning to dealers, against an invasion of its rights, it in so doing would only have discharged a moral obligation, and satisfied the demands of fair dealing. In such a case, a mistake on its part as to the validity of its right would not have rendered it liable to an action." This, we think, it failed to do. It did not attempt to prove that the defendants knew that the "revision," so called, was not the subject of a copyright, and that, therefore, their assertion of a right, as against the plaintiff, was made in bad faith, or that they had any other motive than that of protecting their supposed interest, and that of Mr. Longfellow. On the other hand, the defendants' positive testimony is to the effect that they believed they had a copyright; that they act If, in an action for slander of title, the defendant produce the deed under which he made 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 had 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 plaintiff's sales. On the part of the defendants, it appeared that they and their predecessors had been for a long time the publishers of the cure an exact copy of the early edition? But one answer is suggested by the testimony before us, for the reason that the plaintiff, as well as the defendants, believed in the exist ence and validity of the copyright, in so far alighting 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 servwith 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 which 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. (116 N. Y. 546) MCDONALD v. LONG ISLAND R. Co.1 (Court of Appeals of New York, Second Division. Nov. 26, 1889.) CARRIERS-INJURY TO PASSENGER. Plaintiff's evidence was that as soon as defendant's train, on which he was riding, stopped, he arose from his seat, near the front door of the car, and proceeded to leave by that door; that when he had placed one foot on the last or lowest step, and was proceeding to step off the car with the other foot, which was on the step above, he released his hold of the railing, and, the train starting at the same moment with a sudden jerk, he was thrown to the ground, causing the injuries sued for. Held, that it justified a finding that defendant was guilty of negligence, and plaintiff free therefrom, as the company was bound to give him reasonable time in which to alight.2 Appeal from supreme court, general term, second department. Action by Patrick McDonald against the Long Island Railway Company for personal injuries. Defendant appeals from a judgiment affirming a judgment entered on a verdict for plaintiff. Edward E. Sprague, for appellant. J. Stewart Ross, for respondent. BRADLEY, J. The action was founded upon the charge of negligence of the defendant, by which the plaintiff sustained personal injuries. In the evening of April 27, 1885, the plaintiff took passage on a train upon the defendant's railroad, at Flatbush, to ride to a station at Rockaway avenue, and, in 1 Affirming 43 Hun, 637, mem. On the subject of negligence in alighting from and boarding moving trains, see Railroad Co. v. Crunk, (Ind.) 21 N. E. Rep. 31, and note; Jones V. Railroad Co., (Minn.) 43 N. W. Rep. 1114; Railway Co. v. Williams, (Tex.) 8 S. W. Rep. 78, and note. The question presented on this review arises upon such exception to the charge. If there was any opportunity for inference upon this testimony on the part of the plaintiff, taken as true, that negligence of the defendant, or the freedom of the plaintiff from contributory negligence, was not established by it, the charge was error, and, although the exception was not taken to the charge precisely as made, it may be treated as fairly raising the question whether the instruction was warranted by the facts, as represented by the testimony on the part of the plaintiff, to which the court referred, which was to the effect that the plaintiff sat near the front door of the car; that, as soon as the train stopped at the Rockaway-Avenue station, he arose from his seat, and proceeded to leave the car by going out of that door; that when he had placed one foot on the last or lowest step, and was proceeding to step off the car with the other foot, which was on the next step above, he was, by a sudden jerk of the train in starting, thrown to the ground, and one of his feet was run over, and crushed. It is the duty of a railroad company to give passengers a reasonable opportunity to leave its train at stations where it stops, and reasonable diligence on the part of its passengers in alighting from it is also required. In this instance, upon the testimony as given on the part of the plaintiff, if taken as true, the conclusion was required that the train did not stop a reasonable or sufficient time for the plaintiff to leave it before it started, and, for that reason, that the defendant was chargeable with negligence in that respect, unless that there was some other fact bearing upon question for the consideration of the jury. It is argued that the defendant may have been relieved from this charge of negligence by |