
    Mary C. Remer, as Administratrix of the goods, chattels and credits of Thomas A. Remer, deceased, Resp’t, v. The Long Island Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Walking on bailboad tback—Contbibutoby negligence—When QUESTION FOB JURY.
    The plaintiff and her husband, after having witnessed a game of ball, were returning home. They were walking on the track. When they discovered the engine it was about nine hundred and twenty-two feet behind them and they were about one hundred and fifty feet from a platform where they could get off from the track. The engine was running at such a rate that by reversing the engine the engineer could easily have avoided running them down. When the plaintiff and her husband were near low marshy ground on each side of the track, there was a ditch filled with water. Held, that it was a question for the jury, under all the circumstances, what the plaintiff and her husband might have done to avoid being ran over, and whether they were justified in remaining on the track and making the attempt to reach the platform rather than jumping in the ditch or adopting any other means for their safety.
    3. Same—Perilous exigency—Question of ordinary cabe.
    The deceased was placed in a sudden and perilous exigency, and the question is not whether he did the wisest thing possible under the circumstances, but whether he exercised ordinary care and prudence.
    Appeal by defendant from a judgment in favor of plaintiff rendered at the January circuit and from an order denying a motion for a new trial.
    
      Hinsdale & Sprague, for appl’t; G. D. Rush, for resp’t.
   Pratt, J.

—This is an appeal by defendant from a judgment and order denying a new trial. The action was brought under the statute for alleged negligent killing of plaintiff’s husband, Thomas A. Eemer.

It appeared that on the 19th day of November, 1882, the plaintiff and her husband visited a certain place in Kings county near the hue of defendant’s railroad to witness a game of base ball. It was and had been for many years the custom of persons going to and coming from the ball ground and other places about there to walk along a portion of defendant’s track where Mr. and Mrs. Eemer walked that day.

Deceased and his wife had never been there before, and upon inquiry as to the way, went as they were directed,” not knowing of any other way; they were, also, told there were no trains, and did not expect a train until after five o’clock; this was about three o’clock.

After remaining at the ball ground a little time, Mrs. Eemer feeling a little chilly, they started for home, returning the same way.

The piece of track where the accident happened was built over low marshy ground; when first constructed it was built on low piling, but had since been filled in with earth, but the extent of such filling and the condition of the slope were questions in dispute, but on each side of the track there was a ditch filled with water. There was no room to stand on the track outside of the rails, and there was evidence tending to show that the only way of getting off the track was to jump down the embankment into or across the ditch of water.

They were walking in an easterly direction and the train was running the same way. When they first discovered the engine it was about 922 feet behind them and they were about 150 feet from a platform where they could get off from the track. J

The engineer well knew the difficulty there was in the plaintiff and her husband getting off the track at the place where he saw them, and he was running at such a speed, that by reversing his engine he could easily have avoided running them down, at least there was evidence from which such conclusions could be drawn. It was a question for the jury under all the circumstances, what the plaintiff and her husband ought to have done to avoid being run over, and whether they were justified in remaining on the track and making the attempt to reach the platform rather than jumping in the ditch or adopting any other means for their safety.

This court upon the former appeal laid down the rule “ that if the deceased 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 deceased was placed in a sudden and perilous exigency, and the question is not whether he did the wisest thing possible under the circumstances, but whether he exercised ordinary care and prudence.

It was not so plain that the deceased was guilty of contributory negligence as to justify a nonsuit upon the ground that a verdict, if found, would not be permitted to stand.

Under all the evidence we think this was a question for the jury.

The vital question in the case, I apprehend, is that of defendant’s negligence, and this turns upon the knowledge and conduct of the engineer.

Notwithstanding the trespass of the deceased upon the track, it was undoubtedly the duty of the engineer to exercise ordinary diligence and care to avoid the loss of life.

Upon the facts involved in this question, the witnesses do not agree. Some of the witnesses testify to a state of facts from which the jury might infer that the engineer had ample notice to stop his train as soon as he saw deceased upon the track; on the other hand, other witnesses state that the condition of the bank and ditches was such that the engineer might well have expected deceased would safely go down the bank and thus escape peril. The question was submitted to the jury in a clear' and unexceptionable charge, and we are unable to say that the verdict is so palpably against the weight of evidence as to justify setting it aside. The exception at folio 112 of the case is not tenable. The precise question had already been answered.

The exception to the question whether the plaintiff was ill, is likewise without merit; it was material upon the question of the conduct of the deceased in his care for her on that occasion.

There was no error in permitting Cunningham, the expert engineer, to testify as to the effect of shutting off steam when the engineer upon the train was first informed that deceased was upon the track. The whole conduct of the engineer upon the occasion was in issue, besides if there was anything in this testimony that could mislead the jury it was rendered harmless by the charge. The defendant requested the court to charge, if the engineer believed that these people could get off from the track, as others had done before them, he was justified in keeping on his way till he became satisfied that they were not going to leave, and if then he did all he could to reverse his engine; the whole duty of the defendant was performed.

The Court : That I have already charged, and I will repeat, as soon as the engineer had reason to believe that they were in a place of danger, and then took all the means in his power to prevent the accident, that would be a discharge of his duty.

The objection taken to ruling out the statement of witness that there was no difficulty in getting off the track, is not valid. That question was directly in issue, and was one for the jury to determine upon the facts proved and could not be proved by a witness giving his opinion upon the subject.

We find no error sufficient to warrant setting aside the "verdict, and the judgment is, therefore, affirmed with costs.

Barnard, P. J., and Dykman, J., concur.  