
    Walter M. McKinney, an Infant, etc., Resp’t, v. The Long Island Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 20, 1889.)
    
    1. Negligence—Construction oe track and guarArails—Evidence.'!
    In an action for damages for personal injuries sustained by being struck' by one of defendant’s trains, at the time of the accident plaintiff’s foot being caught and held between one of the rails and a guard-rail, Held, that it was proper for plaintiff to show how the track and guard-rails were constructed at the place of accident, and to show how other guardrails were constructed, so that the jury might determine whether, at the place in question, the same were constructed in the usual or proper manner.
    2. Jury—What does not render juror incompetent.
    A juror who states that, notwithstanding his sympathies, he can render an impartial verdict on the evidence, is not incompetent.
    
      Appeal from a judgment entered upon the verdict of a jury.
    
      Hinsdale & Sprague, for app’lt; John S. Griffith («7. Stewart Boss, of counsel), for resp’t.
   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 not 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 con structed 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 notwithstanding his 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 jurors 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 thé whole case we feel constrained to affirm the judgment.

All concur. __  