Potter, J.
Two points only have been discussed in this
case, as arising upon the judgment given by the justice of the peace. The first is, whether there was evidence before the justice showing or tending to show, that the defendants had been guilty of negligence or want of care in the act which caused or contributed to the plaintiff’s injury. It was one of the grounds upon which the county court reversed this judgment, that there was no sufficient evidence of such negligence. This makes it necessary to determine what rule is to be observed by the county court in a review of justices’ judgments. I am not aware that there has been any change of the rule in this respect, since the case in the court of errors, of
Noyes
v. Hewitt, reported in 18 Wend., 141, which affirmed the rule as laid down by Bronson, J., in
Stryker
v.
Rergin
(15 Wend., 491), and overruling the two cases of .
Whitney
v.
Sutton
and
Columbia Turnpike Road
v.
Haywood
(10 Wend., 413, 425). That rule is, “that where on a trial in a justice’s court there is evidence on both sides, and even where there is only slight evidence in support of the cause of action on which there is a recovery, the county court is not authorized to reverse the judgment, although such court may arrive at a conclusion upon the facts of the ease, or the weight of evidence, different from that drawn by the
justice.” This court, then, are bound to look into the evidence so far as to see if there is any or sufficient evidence to sustain the judgment of the justice. About the leading facts of the case, there is no material conflict, five teams with sleighs, some single, some double, were traveling in the same direction, and in close proximity, in the month of February; one of the defendants, with the team in the rear, turned out to the right and attempted to pass the team next before him, in which were the other two defendants; these two, seeing this effort made to pass them, turned their team also to the right, to prevent the passing; these two teams were then driving side by side with increased speed, one making the effort to pass, the other maldng the effort to prevent the passing ; while these efforts were in progress, they had advanced side by side to the right side of the next sleigh forward of both, in which was Mr. Senter, thus bringing three teams side by side. This action frightened the team of Mr. Senter, which shied to the left, striking a snow bank, upsetting his sleigh, dragging him a distance, his horses escaped, ran with violence against the sleigh of the plaintiff, and demolished his sleigh, and did other injuries. This act which caused the injury, whether justifiable or not, originated with these three defendants. The justice must have attributed negligence or want of care to all these defendants, to justify a judgment against them. Unless there was evidence tending to prove such want of care, the judgment was erroneous. The county court was unable to see in this evidence any proof of want of care, inasmuch as the defendants were lawfully traveling upon a public highway, and had a right to increase their spéed, if they desired to travel at a more rapid rate than did those before them; and, in the opinion of the judge, says, “ there was abundant room for this purpose.” Without controverting the proposition of law, upon the assumed facts, it is first proper to remark,
“
that whether there was abundant room for the purpose,” is a most material
fact
in the case, and of itself is not a question of laWj and the law that is applicable, is controlled by the finding of this fact.
If we are to assume that the justice also considered this
fact whether there was an abundance of room, and passed upon it, we cannot regard this statement of the county judge as having any weight, if we follow the rule we have supposed applies. The question here is, was there evidence sufficient to sustain the finding of the justice that there was not sufficient room, regard being had to the care which is required by law of the defendants in this attempted act of passing ? What evidence had the justice before him on this question ? Whether there
was
room enough depends not upon the width of the road as laid out, whether that be three, four or even six rods, but how much of it, in its condition at that season, could be traveled, or was practicable to travel; what the number of its beatefi or traveled tracks; what portion of the road was filled and obstructed with snow drifts; what the depth of snow; what the depression of the tracks; what the height of the intervening ridges, pitch-holes, &c.; all these are im portant features in this case upon the question of care to be observed by him who desires or attempts to pass. The justice could not exclude from his consideration the evidences that nature, that the season, that the elements had interposed, .nor such as the common experiences of life in the country furnish. The justice had a right to consider all these, from the facts proved, that this was a north and south road; he had a right to consider, then, from what all experience teaches, that westerly winds fill such roads with drifts of snow, and that such drifts would be on the left hand side of such a road, in going north, and the fact proved that there were such drifts, he had a right to consider that such drifts would narrow the practical traveled passage way; and that the snow drift that upset Senter’s sleigh was proved to be on the left hand side of this road. Though the county judge, in the month of June, when he reversed the justice’s judgment, did not see or consider this character of evidence as being in the way, the legal presumption is that the justice did consider it. Experience . also teaches, and the justice doubtless considered it, that turning out of deep snow tracks requires care and caution to prevent upsetting. If the justice did consider all this, if he based his judgment
upon that consideration, if in view of these considerations, and the evidence, he held that the defendants were negligent, that they ought to have used more care, then his judgment upon this point must be sustained. There is evidence, strong evidence, tending to prove negligence or want of care. Such a judgment has a more reasonable, practicable and sound basis to sustain it than that which is based upon the nonexistence of these facts. The county judge ignored them all. These facts and circumstances may have been entirely controlling with the justice in giving his judgment. That the county judge acted upon the opposite assumption of fact is clear; he decides as a question of fact,
“
that there was room enough,” and upon this assumption held the law to be with the defendants. How the conclusion of law will be affected by this wrong assumption of fact will be seen in the next point.
2. If we are right as to the facts that may have been considered by the justice, then the rule of law was correctly laid down in the dissenting opinion given in the Supreme Court, .and it may be repeated here. The majority of the Supreme Court having adopted the views of the county judge, they, of course, and of necessity, adopted his facts, which was the basis of his decision. The case of
Kelsey
v.
Barney
(2 Kern., 429) I regard as controlling in this case. In that case the court says:
“
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Potter, J.
Two points only have been discussed in this
case, as arising upon the judgment given by the justice of the peace. The first is, whether there was evidence before the justice showing or tending to show, that the defendants had been guilty of negligence or want of care in the act which caused or contributed to the plaintiff’s injury. It was one of the grounds upon which the county court reversed this judgment, that there was no sufficient evidence of such negligence. This makes it necessary to determine what rule is to be observed by the county court in a review of justices’ judgments. I am not aware that there has been any change of the rule in this respect, since the case in the court of errors, of
Noyes
v. Hewitt, reported in 18 Wend., 141, which affirmed the rule as laid down by Bronson, J., in
Stryker
v.
Rergin
(15 Wend., 491), and overruling the two cases of .
Whitney
v.
Sutton
and
Columbia Turnpike Road
v.
Haywood
(10 Wend., 413, 425). That rule is, “that where on a trial in a justice’s court there is evidence on both sides, and even where there is only slight evidence in support of the cause of action on which there is a recovery, the county court is not authorized to reverse the judgment, although such court may arrive at a conclusion upon the facts of the ease, or the weight of evidence, different from that drawn by the
justice.” This court, then, are bound to look into the evidence so far as to see if there is any or sufficient evidence to sustain the judgment of the justice. About the leading facts of the case, there is no material conflict, five teams with sleighs, some single, some double, were traveling in the same direction, and in close proximity, in the month of February; one of the defendants, with the team in the rear, turned out to the right and attempted to pass the team next before him, in which were the other two defendants; these two, seeing this effort made to pass them, turned their team also to the right, to prevent the passing; these two teams were then driving side by side with increased speed, one making the effort to pass, the other maldng the effort to prevent the passing ; while these efforts were in progress, they had advanced side by side to the right side of the next sleigh forward of both, in which was Mr. Senter, thus bringing three teams side by side. This action frightened the team of Mr. Senter, which shied to the left, striking a snow bank, upsetting his sleigh, dragging him a distance, his horses escaped, ran with violence against the sleigh of the plaintiff, and demolished his sleigh, and did other injuries. This act which caused the injury, whether justifiable or not, originated with these three defendants. The justice must have attributed negligence or want of care to all these defendants, to justify a judgment against them. Unless there was evidence tending to prove such want of care, the judgment was erroneous. The county court was unable to see in this evidence any proof of want of care, inasmuch as the defendants were lawfully traveling upon a public highway, and had a right to increase their spéed, if they desired to travel at a more rapid rate than did those before them; and, in the opinion of the judge, says, “ there was abundant room for this purpose.” Without controverting the proposition of law, upon the assumed facts, it is first proper to remark,
“
that whether there was abundant room for the purpose,” is a most material
fact
in the case, and of itself is not a question of laWj and the law that is applicable, is controlled by the finding of this fact.
If we are to assume that the justice also considered this
fact whether there was an abundance of room, and passed upon it, we cannot regard this statement of the county judge as having any weight, if we follow the rule we have supposed applies. The question here is, was there evidence sufficient to sustain the finding of the justice that there was not sufficient room, regard being had to the care which is required by law of the defendants in this attempted act of passing ? What evidence had the justice before him on this question ? Whether there
was
room enough depends not upon the width of the road as laid out, whether that be three, four or even six rods, but how much of it, in its condition at that season, could be traveled, or was practicable to travel; what the number of its beatefi or traveled tracks; what portion of the road was filled and obstructed with snow drifts; what the depth of snow; what the depression of the tracks; what the height of the intervening ridges, pitch-holes, &c.; all these are im portant features in this case upon the question of care to be observed by him who desires or attempts to pass. The justice could not exclude from his consideration the evidences that nature, that the season, that the elements had interposed, .nor such as the common experiences of life in the country furnish. The justice had a right to consider all these, from the facts proved, that this was a north and south road; he had a right to consider, then, from what all experience teaches, that westerly winds fill such roads with drifts of snow, and that such drifts would be on the left hand side of such a road, in going north, and the fact proved that there were such drifts, he had a right to consider that such drifts would narrow the practical traveled passage way; and that the snow drift that upset Senter’s sleigh was proved to be on the left hand side of this road. Though the county judge, in the month of June, when he reversed the justice’s judgment, did not see or consider this character of evidence as being in the way, the legal presumption is that the justice did consider it. Experience . also teaches, and the justice doubtless considered it, that turning out of deep snow tracks requires care and caution to prevent upsetting. If the justice did consider all this, if he based his judgment
upon that consideration, if in view of these considerations, and the evidence, he held that the defendants were negligent, that they ought to have used more care, then his judgment upon this point must be sustained. There is evidence, strong evidence, tending to prove negligence or want of care. Such a judgment has a more reasonable, practicable and sound basis to sustain it than that which is based upon the nonexistence of these facts. The county judge ignored them all. These facts and circumstances may have been entirely controlling with the justice in giving his judgment. That the county judge acted upon the opposite assumption of fact is clear; he decides as a question of fact,
“
that there was room enough,” and upon this assumption held the law to be with the defendants. How the conclusion of law will be affected by this wrong assumption of fact will be seen in the next point.
2. If we are right as to the facts that may have been considered by the justice, then the rule of law was correctly laid down in the dissenting opinion given in the Supreme Court, .and it may be repeated here. The majority of the Supreme Court having adopted the views of the county judge, they, of course, and of necessity, adopted his facts, which was the basis of his decision. The case of
Kelsey
v.
Barney
(2 Kern., 429) I regard as controlling in this case. In that case the court says:
“
The law imposes upon all persons using a highway the obligation to exercise
ordvna/ry care
to avoid inflicting injury upon others. The degree of care which is thus imposed, is not capable of exact definition in words. It is sometimes said to he that degree of care which a prudent man exercises about his own affairs. This definition, and all similar ones, plainly do not greatly aid the inquiry as to the exact limits of the care to be exercised in any particular case. The difficulty is inherent in the subject. * * * It seems plain also, that the degree of
vigilance
which the law will exact as implied by the requirements of
ordi/nary care,
must vary with the probable consequences of negligence; and also, with the command of means to avoid injuring others,- possessed by
the person on whom the obligation is imposed. Thus, upon a person walking in a country road, and upon another driving a spirited horse in a crowded thoroughfare, the requirement of
ordinary ca/re
will impose very different degrees of
vigilance
to avoid inflicting injury upon others. Under some circumstances,
a very high degree of vigilance
is demanded by the requirement of
ordi/na/ry ca/re.
When the consequence of negligence will probably be serious injury to others, and when the means of avoiding the infliction of injury upon others
a/re completely within the party's
power,
ordina/ry ca/re
requires almost the utmost degree of human vigilance and foresight.”
This in substance is the -law as laid down by Sir William Jones. In regard to the care or diligence which is recognized in the law, he says: “There are infinite shades from the slightest momentary-thought or transient glance of attention to the most vigilant anxiety and solicitute. And in like manner there are infinite shades of default or neglect from the slightest inattention or momentary absence of mind, to the most reprehensible supineness and stupidity; and these are the omissions of the before mentioned degrees of diligence, and are exactly correspondent with them.” Jones on Bail, 5-8. The law of the road as to persons traveling in the same direction, is laid down by Angell as follows: “ If there be not sufficient room to pass on the one side or the other, it is the duty of the foremost traveler to furnish it
on reguest
made, by yielding an equal share of the road, if that be adequate and practicable; if not, the object must be deferred until the parties arrive at ground favorable to its accomplishment. Angell on Highways, § 340. In the case of
Vandeburgh
v.
Truax
(4 Denio, 464), Bronson, Ch. J., said, “ when one does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action for all the consequences 'which may directly and naturally result from his conduct. (See also
Scott
v. Shepherd, 2 W. BL, 892;
S. C.,
3 Wils., 403.)
The opinion of the learned county judge does not adopt this rule, nor the law as found in the cases cited. He dis
cusses plausibly the right of parties in the abstract; and is right, if circumstances did not control as against an absolute unvarying principle. How I apprehend that
ordinary
ca/re, as between two teams traveling on the highway, the one desiring to pass the other, upon a good, wide, improved road, in the
summer
season, according to the law as we have taken it from
Kelsey
v. Barney, is an entirely different rule from that of teams traveling in company in the
winter
season, over slippery, contracted and drifted roads, with sudden, abrupt and uneven surfaces. The learned county judge has discussed the law as if there was a uniform rule under all circumstances. His reversal of the judgment -of the justice, gives the justice no credit for the considerations that may have controlled his judgment, and “that the defendants have the command of means to prevent the injury,” and did not exercise that vigilance which amounted to ordinary care under the whole circumstances of the case.
It is possible, nay probable, that the justice whose decision he reversed adopted the true rule, and in the absence of knowledge of the rule actually adopted (if he adopted any rule at all), the law comes to the aid of the judgment he has given, and demands that the appellate court shall give to his judgment every reasonable construction to sustain it, if from the evidence it was possible for him to have given such a judgment as he did give. We have shown that there were facts in the case, with circumstances attending them, which brought it within the province of the justice to say whether the defendants, and each of them, used all the precaution and care demanded of them under the circumstances. This being so, we aré to presume his judgment was given upon the right ground, and it ought, therefore, to stand. I think the judgment of the Supreme Court and of the county court ought to be reversed, and that of the justice affirmed.
Denio, Ch. J., Davis, Davies and Brown, JJ., concurring.