Cottrell v. Southern Railway Co.

delivered the opinion of the court.

Cottrell was driving a two-horse wagon along a street of West Point, and, when he neared the crossing of the Southern Bailway Company, he say a train of said company proceeding toward the crossing before him; and, supposing that he could safely cross the track before the engine reached that point, he drove his team upon the crossing, and endeavored to cross over, but failed, and the left hind wheel of his wagon, lacking some twelve inches of being out of the way, was struck, from which misfortune Cottrell was violently thrown from his wagon and received injuries here complained of. As Cottrell was doubtless guilty of contributory negligence in attempting to cross the railroad track of appellee in front of a rapidly moving train, if this were the whole case, the peremptory instruction would have been correct. But the record discloses the fact that 'the train of appellee, though within the corporate limits of the city of West Point, and within plain view of the crossing, was running at a speed much greater than sis miles per hour, and that it continuously increased its speed from the point where first noticed until it struck the wagon of applicant. The witness, Thomas, testifies that when the train was about the pump house he saw the engineer looking toward the crossing, and we *617must presume that he saw the appellant’s wagon upon the track; and, under such circumstances, it was the duty of appellee’s servants to use all ordinary care to prevent running over appellant. It is a wholesome rule of law that, even where a person has voluntarily placed himself in a place of peril upon a railroad track, yet, where his peril becomes known to the engineer, it is his duty to use proper care not to inflict injury upon such person. Whether, therefore, the engineer, when he saw the danger threatening’ appellant, should have shut off steam and put on his brakes, or used .other means in his power to lessen the speed of the train, and whether proper diligence on his part would have avoided the injury suffered by appellant, are questions which we think should have been submitted to the jury for solution. 1 Thomp. Negl., sec. 237. The peremptory instruction was erroneous.

Reversed and remanded,