Clark, J.

: This is an action for damages for the death of a brakeman, caused by the derailment of a train. The facts are thus stated in the defendant’s brief: — “About sixty feet east of the end of the curve the tender jumped the track. At the ¡joint where ■ the tender was derailed, and for fifty to two hundred feet beyond, going west, the track was perfect; then some fifty to two hundred feet beyond the point where the tender was derailed there were rotten cross-ties for some distance. The train ran for some distance after it passed the point where it was derailed, and after it struck the rotten cross-ties, it broke off the ends of them and spread the track, and the tender and eight cars were finally thrown down the bank some 12 feet. Neither the engine in front nor the cab in the rear of the train was derailed.” The court held that, there being “no evidence that at the place where the cars left the track the condition of the road bed or crack was defective, in no reasonable view of the evidence was the plaintiff entitled to recover.” Upon which intimation of opinion the plaintiff submitted to a non-suit and appealed.

In this ruling thei'e was error. If it be conceded that the cross-ties were sound where the tender jumped the track, still, but for the rotten "cross-ties further on and the consequent spreading of the track, it may be that by the use of air brakes the train could have been stopped and kept on' the line, and the cars would not have rolled down the embankment. The destruction of the train and the injury of the intestate may not have been the unavoidable and necessary consequence of the *961 tender’s jumping the track. We do not know how the fact was, but the evidence should have been submitted to the jury under proper instructions from the court. If, notwithstanding the tender’s jumping the track should be found to have been an accident not caused by any fault of the defendant, yet, if the defendant by having proper appliances and a good road-bed could have avoided the injury to the intestate, it is liable.

As the facts may be more fully or differently developed on another trial, it can serve no purpose to discuss them here more at length.

New trial.