The trial court set aside the verdict on the ground that the jury could not reasonably have found that the decedent was in the exercise of due care at the time of the accident, and that the evidence necessarily showed that either the intestate did not look attentively, or if he did look, he mistook his chances of getting across in safety. On this point the testimony of the two survivors, with its implications, is conclusive. The point at which Ostrow stopped the truck and waited for a signal to start again, is located quite accurately with reference to a stone wall thirty-six feet north of *Page 481 the nearest rail, and is approximately forty feet therefrom. The speed of the truck when in low gear is also fixed by the undisputed evidence at not less than three miles an hour. There is nothing in the evidence to suggest that the truck stopped from the time when it started toward the crossing until it was struck by the train as the front wheels reached the track. At the slowest rate of speed suggested on the evidence, the truck would cover forty feet inside of ten seconds, and since the train reached the crossing at the same time as the truck, it must have been well within the range of vision when the truck started from its stopping place forty feet away. Assuming a speed of even sixty miles an hour, the train could not have been more than about nine hundred feet away when the truck started; and on the testimony no claim is or can be made that the train was not plainly visible at that distance.
Zabarsky testified that no train was in sight when he signalled Ostrow to go ahead. If that testimony be accepted as establishing the fact, then it follows that Ostrow must have waited until the train did come in sight before he acted on the signal.
In any aspect, the evidence required the jury to find that the decedent started toward the crossing at a time when the train was in sight, and continued on his course until it was upon him, although the truck could have been stopped at any time within two or three feet.
There is no error.
In this opinion the other judges concurred.