Epitomized Opinion
A witnеss for the plaintiff testified that he saw he аccident; that Crouse stepped upon the railroad rack and turned to the right and walked along hereon without loоking to • the left, or back, and mtered upon the track at a time when an approach-ng car was only 30 feet from him, by whiсh he vas run over and killed. His administratrix de-endаnt herein recovered a judgment in the distriсt ourt, which a reversal of is sought by the railroad, m two grounds: (1) That Crouse’s contributory íegliegence mas so clear as to require an instructed rerdict for it; and (2) that the court gave erroneous nstruction in submitting to the jury the rule of ast clear chancе. The court of appeals held:
1. That the plaintiff was not bound by the testi-nony of оne of her witnesses, as to how the acei-lent occurred, but was entitled to gо to the jury ipon the theory that this witness was mistaken, and ipon inferences which might rightly be drаwn from ;he testimony of her other witnesses and from lefendant’s testimony.
2. There is no rule оf law which imperatively nakes it negligence for a licensee, walking along а •ailroad track, to neglect to look back during a jeriod of six or eight seсonds, if the track behind lim was clear when he entered upon it.
3. Tbe trial court gave a charge to the jury tovering a page of the record and involving severаl joints, upon contributory negligence аnd the rule jf last clear chance. The defendant merely excepted ;о the charge on this subject. This exception was rot good, unless there was nothing in thе record ¡ustifying any submission to the jury upon that ffieory. The evidence which most strongly tended ;o show Crouse’s contributory negligencе also tended ;o show that the car wаs moving slowly; that there was a considerаble time after the brakeman on the mоving car saw Crouse and his danger, within which ;ime thе brakeman might have stopped the car; jut that he did not promptly enough try to do so. In the aspect of the evidenсe most favorable to support а recovery on this theory, there was a case for submission to the jury.