
    McKinney v. Long Island R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Negligence—Evidence.
    In an action for injuries sustained by being struck by a train while plaintiff’s foot was fastened in the track between one of the rails and a guard-rail, plaintiff may show how the track and guard-rail were constructed at the place of the accident, and how other guard-rails are constructed, so that the jury may determine whether the guard-rail at the place of accident was constructed properly.
    3. Jury—Competency of Jurors.
    A juror who states that, notwithstanding his sympathies, he can render a fair verdict is not incompetent.
    Action by Walter M. McKinney against the Long Island Railroad Company for injuries received by plaintiff, while his foot was fastened in defendant's railroad track, by being struck by a train. From a judgment on a verdict for plaintiff defendant appeals.
    Appeal from circuit court, Kings county.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Hinsdale <6 Sprague, for appellant. John S. Griffith, (J. Stewart Boss, of counsel,) for respondent.
   Pratt, J.

This case has now been tried four-times before a jury, on three of which occasions the jury disagreed. It is conceded to involve issues of fact, but the evidence is utterly irreconcilable as to the circumstances surrounding the accident. It is probable that the plaintiff and his companion, boy-like, inserted their feet in the space between the two rails for an experiment, and then became frightened at the approach of the train, and became caught, and failed to extricate themselves in time.

There is no merit in any of the exceptions taken at the trial. It was proper for the plaintiff to show how the track and guard-rail were constructed at the place of the accident, and also to show how other guard-rails are constructed, in order that the jury might determine whether at this place the same was constructed in the usual or proper manner. The challenge to the juror Dorrien was properly overruled. The juror stated that, noth withstanding bis sympathies, he could render an impartial verdict upon the evidence. The juror stood on the extreme limit of competency, but we are unable to say, under the cases, that he was so affected by any bias as to render him incompetent to serve.

Three juries have failed to agree for the defendant, and the last has agreed for the plaintiff. Such verdict must stand, unless this court usurps the province of the jury and holds that the plaintiff’s witnesses are not worthy of credit. Assuming even that the boys put themselves in this position of peril, it then was a question of fact whether the defendant used reasonable care not to run over them. On the whole case we feel constrained to affirm the judgment. All concur.  