Uрon a motion for a nonsuit, the court is bound to give the most favorable construction for the plaintiff
(Imhoff
v. Railroad,
*202
From this evidence the jury might legitimаtely infer, and find, that the defendants failed to exercise due care towards the deceased, and that the want of it was a cause adequate to produce the injury to him which resulted in his death. But as, in an action for negligence, two conditions must concur — a performance of duty by the plaintiff, and a breach of duty by the defendant— the proof of a breach by these defendants did not necessarily give rise to the inference of due care on the part of'thе deceased, proof of which was essential to the plaintiff’s case. The rule, that the burden of proof is on the plaintiff to prove his exercise оf proper care, is, however, easily satisfied, and the exercise of such care may be shown by circumstantial as well as by direct proof. It even mаy, under some circumstances, be inferred from the ordinary habits and dispositions of prudent men, and the instinct of self-preservation.
Huntress
v.
Railroad, ante, p.
185;
Johnson
v.
Railroad,
In the present case, nothing is found to which negligence on the part of the deceased can fairly be imputed; but, on the other hand, circumstances are shown from which the jury might well infer that he exercisеd the care and circumspection properly to be demanded from one in his situation ; and it is only when the whole evidence on which the plaintiff’s casе rests shows conclusively that he was careless, or when there is no evidence tending to show the contrary, that it is deemed to be the duty of the court to withdraw the case from the jury, or to direct a verdict for the defendants.
Mayo
v.
Railroad, supra; Gahagan
v.
Railroad,
It is true that it does not definitely appear that the deceased used any precautions to avoid the collision. But it is a presumption of common sense as well as of the common law, that persons of mature years, and in possession of thеir senses, are ordinarily prudent, and will exercise ordinary diligence to avoid danger; and besides, the unadvertised approach of the train through the cut and around the curve, at a time when no regular train was due, at a forbidden rate of speed of from fifty to ninety feet a second, and without warning or notice of any kind until it was in close proximity, gave the deceased little or no opportunity to escape the result which followed, and to this extent tended to exсlude fault on his part; for he had the right, under the circumstances and
*203
within reasonable limits, to act upon the belief that the defendants would observe their own rules аt least
(State
v.
B. & M. Railroad,
58 N. H. 408, 410,
Nutter
v.
Railroad,
60 N. H. 485,
Copley
v.
Railroad,
A plaintiff is not required in all cases to prove that he looked and listened. It may be inferred, in view of the circumstances, that he did what a prudent man wоuld do to save his life, and was governed by the instinct of self-preservation.
Weiss
v.
Railroad, Railroad
v.
Rowan, Northern Central Railway
v.
State,
and
Johnson
v.
Railroad, supra ; Richey
v.
Railroad,
We are therefore of opinion that the case falls within the general rule, that negligencе is a question of fact, — to be found, however, under the instructions of the court, — and not one of law; and unless we can say, as we cannot, that there was no еvidence and nothing in the circumstances proved fairly to uphold a verdict for the plaintiff, it must be held that the case was properly submitted to the jury. While a nоnsuit should always be granted when the proof is so clear as to warrant the assumption that if the question was submitted to the jury they would find that the culpable negligencе of the plaintiff contributed to the injury, it should never be granted when the question arises on a state of facts on which fair-minded men may arrive at opposite conclusions. Almost always, negligence is to be deduced as an inference of fact from a variety of facts and circumstances disclosed by the testimоny; and when this is so, unless the evidence is certain and incontrovertible, it is the judgment and experience of the jury, and not of the court, which are to be apрealed to. See
Gaynor
v. Railway,
The testimony of Robinson, as to the management and speed of the engine at a crossing three fourths of a mile from the one wherе the accident happened, was properly admitted, as tending to show its management and speed at the place of accident, within a minute оr so afterwards (Nutter v. Railroad and Parkinson v. Railroad, supra), and was a legitimate subject of argument by the plaintiff’s counsel upon-the matter of the defendants’ want of care at that place.
The remaining exception, that it was not competent to show the rule of the defendants requiring wild engines not to be run on crossings over fifteen miles an hour when a rеd flag had not been sent out on the preceding train, requires no consideration.
Exceptions overruled.