Remer v. Long Island Railroad

Assuming that the deceased was improperly upon the track of the defendant, still it must be conceded. that the defendant was not thereby excused from a fair and even diligent effort to save him. Whether this effort was made was a question for a jury to answer. The defendants’ driver saw the deceased upon the track some 640 feet off. He could have easily stopped the locomotive. There was evidence tending to show that it was difficult to leave the track at the point where deceased was when first seen, and there is proof that he made great efforts to get to the end of the trestle work and beyond the ditch on the side of it, so as to leave the track. He failed by the fractional part of a minute, probably three seconds, and was killed. As a general rule, the question of contributory *255negligence is for the jury. The case must be so plain to justify a nonsuit upon that ground, that a verdict, if found, would not be permitted to stand. If a different deduction can be made from the evidence in respect thereto, it is for the jury to say whether it is made out. The railroad track leads to a public ball ground from a ■street-car crossing. Many people used the railroad track to get to it. The trespass was an involuntary one, and if he did all he could be properly asked to do to escape the peril in which he was suddenly placed, the jury may find no contributory negligence upon his part.

The judgment should, therefore, be reversed and a new trial .granted, costs to abide event

The fact that deceased was upon the railroad track does not of itself render it impossible for the plaintiff to recover in this action. Por, notwithstanding the trespass, it was still the duty of defendant to exercise diligence and care to avoid the loss of life. The question whether the company exercised such care is not an easy one to determine, for, upon several important matters, the witnesses do not agree. Some of the witnesses testify to a condition of the bank and ditches, which should have been ample notice to the engineer to stop his train as soon as he saw the deceased upon the track. Had he stopped thus promptly, the injury would not have taken place. Other witnesses testify to a condition of the bank and ■ditches, from which the engineer might well have expected that deceased would safely go down the bank and thus escape from peril. If he had reason to believe deceased could safely go down the bank and escape danger at any time, he might well negl ect to stop the train until he had reason to suspect deceased was not going to take that course.

On the whole, we think, the question of defendant’s negligence should have been submitted to the jury, and, likewise, the question of contributory negligence of deceased.

The judgment should be reversed and a new trial ordered, costs to abide event.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.