The opinion of the court was delivered by
Thе main reason urged by the defendants’ counsel for setting aside this verdict, is that, from the undisputed facts in the cаse, the plaintiff was guilty of contributory negligence, and that the court erred, in the first instance, in refusing to non-suit thе plaintiff for this cause, and after-wards in not instructing the jury to find a verdict for the ■defendants.
So, where suсh want of ordinary care, on the part of the plaintiff, is apparent, when all the evidence is givеn on both sides, the court will interpose, after verdict in his favor, and set it aside. Moore v. Central R. R. Co., 4 Zab. 268; Telfer v. Northern R. R. Co., 1 Vroom 188.
But, as it was said in N. J. Express Co. v. Nichols, 3 Vroom 166, where the evidence оn this point is doubtful, and the inferences to be drawn from the facts are uncertain, it is the province of thе jury to decide, and the case must be strong which will justify a reversal for denying a non-suit, and submitting the question of negligence to the jury. Where there are doubtful and qualifying circumstances, the question of negligence or want of proper care is a matter of ordinary observation and experience of the conduct of men, and as such, must be left to the jury, as being within their legal province. The law has said, in these cases, that the plaintiff, shall have the judgment of twelve men, and not the opinion
The fact upon which the defendants mainly relied, in this-case, was, that the plaintiff did not look up the track as he approached, and before he attempted to cross it. But the plaintiff had looked when about one hundred yards from the crossing, and saw, as he supposed, a train going in the opposite direction, with the rear towards him. He was not required, by any legal rule, to look continually until he crossed the track. A man of prudence might have received a fixed impression, from the appearance of the train, that it was-going awаy from the station. Having that belief, his further attention may have been called off by the actions of the mеn near the station, who were gesticulating, which he misunderstood. The track was single, and but few trains passed during the day. If there had been several tracks, and trains passing frequently, the case against him would be stronger.
He saw Faneher’s wagon crossing just before him, and this circumstance was likely to confirm his belief that there wаs no train near.
It was for the jury to weigh all these facts, and say whether his mistake and consequent feeling оf security were-unreasonable, and manifested a want of proper care. His conduct might not bе deemed negligent, if, in connection with these circumstances misleading him, the jury believed that the defendants' agents were running the train backward,, quietly, without any alarm by bell or whistle, and at an unusual rate of speed. Thеre was much testimony to that effect. Although it was said that he was warned by the men near
There werе inferences to be drawn from all the facts of this case, upon the question of contributory negligenсe, which were proper for a jury.
The case is a very close one upon the facts, and, аlthough it may be doubtful whether the conclusion is correct, yet the facts are not so clear, nor thе jury so manifestly mistaken in their finding, that we feel constrained to set aside théir verdict for this cause.
The amount оf damages given is $3980. This sum .seems large, but we cannot say it is too much, in the case of .a man but twenty-eight years оf age, who has suffered much pain, and is shattered in body and mind, so that he is permanently disabled, in the opinion of physicians and others.
The rule to show cause should be discharged, and a judgment entered for the plaintiff.