
    Mary Walsh et al., Administrators, Appellants, v. The Manhattan Railway Co., Respondent.
    (New York Superior Court — General Term,
    April, 1894.)
    In an action against an elevated railroad for causing death, by negligence, where it appears that the decedent fell or jumped upon the track from the platform, and the engineer saw him, and the evidence is conflicting as to whether the train was only twenty-five feet or a block and a half distant at the time, a question of fact is presented for the jury, and it is error to dismiss the complaint.
    Appeal from judgment dismissing the complaint.
    Action to recover damages for the death of the plaintiffs5 intestate, alleged to have been caused by the defendant’s negligence.
    
      Samuel C. Herriman, for appellant.
    Davies, Short & Townsend, for defendant.
   Dugro, J.

The plaintiffs’ intestate fell or jumped upon the track of the elevated railroad from the station at Eighteenth street and Third avenue, and was crushed to death by an incoming train.

This appeal is from the judgment dismissing the complaint, . entered after the defendant had rested.

The question presented is substantially whether the evidence warranted a submission of the case to the jury.

As there was evidence that the engineer saw the deceased fall or jump, whichever he did, the location of the train at - the time of this incident was of vital importance; Upon this point the evidence was conflicting.

The engineer testified that when he got to the end of the station, about twenty-five feet from the deceased, the latter jumped off the platform.

Doyle testified that when the deceased got up from the track, he, the witness, looked south to see where the engine was, and noticed it between Sixteenth and Seventeenth streets.

If the jury believed, as they might have, that at the time the engineer saw the deceased leave the platform the train was between Sixteenth and Seventeenth streets, and the engineer’s evidence that he did not put the brakes on until he reached the end of the station, and that they were then on for his regular stop, it might well be that they would have found the accident to have occurred through negligence on the part of the engineer in not using ordinary diligence to stop the train after he saw the deceased upon the track.

It may be needless to say that if the accident happened through the engineer’s neglect to use ordinary care after he saw the man upon the track, there would be no question of contributory negligence, except such as might arise upon the point as to whether the deceased used ordinary care in attempting to reach a point of safety, and upon this the' evidence would have sustained a finding in plaintiffs’ favor.

I think the refusal to submit the case to the jury was error, and that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to abide event  