Opinion of the Court. steam. Various other witnesses testify the same way. It may be, and probably is, true, that deceased, following after Donohue's buggy, did not stop as he approached the crossing, to either look or listen. This may have been negligence, but whether it was such as should defeat the recovery, was for the jury to determine, upon its comparison with that of appellant's servants. This crossing, when considered with all the circumstances of the situation of the highway and railroad, must have been deemed by the jury to have been of a most dangerous character. No man of ordinary sense could consider its circumstances without arriving at that conclusion. The company was under the statutory duty to restore the highway to its former state, or in a sufficient manner not to impair its usefulness. Stat. 1849, p. 24. The peril of the crossing could have been avoided by the railway going under the highway, or, in other words, constructing the highway over the railway. If the highway could be restored in a manner not to impair its usefulness only in that way, it was the duty of the company to so restore it, and the omission was a breach of duty. It failed in its statutory obligation. It was not the duty of the highway authorities, but of the railroad company, to give this protection from the peril caused by the railroad. The circumstances were all before the jury. The crossing was only two miles and a half from a populous city; was upon an old, much traveled highway, which was situated, with reference to the intersection of the railroad, as before detailed. Persons driving north upon the highway, and especially at that time of year, had very little, if any, opportunity of seeing a train approaching from the east, by the use of particular caution. By reason of the descending grade, trains came gliding down through the cut east of the crossing without the use of steam, and almost noiselessly, except a rumbling sound which could be heard with difficulty by one driving or riding in a vehicle upon the highway, so that the traveler on the highway was subject to imminent peril, and was almost wholly dependent Opinion of the Court. upon the servants of the company performing the statutory duty of ringing the bell or sounding the whistle, for any warning against that peril. The company is chargeable with notice of all the perilous circumstances of a crossing constructed by itself. There was no sign board there to give warning, as required by statute. There was evidence sufficient for the jury to find that the servants of the company having the control of the particular train that did the injury were well aware of the dangerous character of the crossing. If this were so, and there is evidence tending to show that they ran the train without the use of steam down this grade in a comparatively noiseless manner and at a rapid rate of speed, without sounding the whistle or ringing the bell after they passed the whistle post, 80 rods east of the crossing, when they had every reason to suppose that persons would be passing over the track on the highway without opportunity of seeing the approaching train, then these facts were sufficient to warrant the jury in inferring recklessness of life and limb on the part of such servants, and that they were actuated by general malice and criminal misconduct, or very gross negligence. It is the opinion of a majority of the court, that there was evidence strongly tending in that direction, and that the verdict of the jury so finding, and that the negligence of the deceased was slight when compared with that of the company and its servants, and that the negligence of the latter was gross, is not so against the clear weight and preponderance of the evidence as to justify this court in disturbing it. The only instruction given on behalf of appellee, which is complained of, is the fifth, and is as follows: "If the jury should find from the evidence that the defendant is guilty of the wrongful act, neglect or default, as charged in the plaintiff's declaration, and that the same resulted in the death of Albert Y. Payne, then the plaintiff is entitled to recover in this action, for the benefit of the next of kin of such deceased, such damages as the jury may deem, from the Opinion of the Court. evidence and proofs, a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to such next of kin, not exceeding $5000." The point of this instruction is the measure of damages, and in this respect is entirely correct. But appellant's counsel insists that it is wrong because it withdraws from the jury all consideration of the conduct of deceased. We do not think the instruction obnoxious to criticism, as claimed. It is not an unusual, nor is it an objectionable, practice, where plaintiff's counsel desire an instruction as to the rule of damages, to say to the jury that, if they find from the evidence that the defendant is guilty, as charged in the declaration, then the plaintiff is entitled to recover, and to define the measure of damages. Such a mode obviates the necessity of stating, and perhaps reiterating, hypothetically, each element of the cause of action, before coming to the real point of the instruction. The declaration here alleges that the death of Albert Y. Payne was caused by the wrongful acts, neglect and default of defendant's servants, while he was exercising due care. The thirteenth instruction asked for on behalf of appellant was properly refused, because it purported to take the case, when there was a conflict of testimony, away from the jury, by telling them that no evidence had been given to the jury on the trial, tending to show that the deceased, Albert Y. Payne, took any precaution, or used any care or diligence, to avoid the accident, and that it was their duty, in view of all the evidence in the case, to find a verdict for the defendant. All of the other instructions asked on behalf of the defendant, and refused, were substantially embraced in those which were given. We think the law was laid down most favorably for the defendant, and to the fullest extent to which it was entitled. It is the opinion of a majority of the court that there is no substantial error in this record, and that the judgment of the court below should be affirmed. Judgment affirmed. INDEX. ABANDONMENT. ABANDONMENT OF HOMESTEAD. See HOMESTEAD, 2, 3, 4. ABATEMENT. WAIVER OF PLEA IN ABATEMENT. A plea in bar filed in a cause, will operate as a waiver of a plea in ACCOUNT STATED. COUNT THEREON. What will support it. See PLEADING AND EVIDENCE, 14. ACTIONS. FOR SERVICES, WHEN NO CHARGE WAS INTENDED. 1. In an action to recover for work and labor, it appeared the plain- TO RECOVER A PENALTY. 2. Whether civil or criminal. It has been held that a proceeding to 3. Where offense charged is assault and battery. Where it is sought AS TO THE USE OF ONE'S OWN PROPERTY. 4. To the injury of the property of another. In an action to recover ACTIONS. AS TO THE USE OF ONE's own PROPERTY. Continued. instruct, for the defendant, that a man has the right to erect a mill in 5. Nor is it error, in such case, to instruct that the law does not give REMEDIES AGAINST MARRIED WOMEN. Upon contracts in respect to their separate property—whether at law or FOR INJURY TO A REVERSIONARY INTEREST. See REVERSIONARY ACTION OF TROVER. Whether it will lie. See TROVER, 1, 2. Liability for negligence, in respect thereto. See NEGLIGENCE, 7 to 11. ADJOURNMENT. ADJOURNMENT OF SHERIFF'S SALE. See SALES, 3, 4. ADMINISTRATION OF ESTATES. OF A SECOND OR ADDITIONAL ADMINISTRATOR'S BOND. 1. Liability thereon. An administrator, after having given the usual |