
    William Thayer, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Third Department,
    January 9, 1907.
    Negligence — trespasser on railroad struck toy train— expert testimony raising question of fact as to ability to stop train.
    The plaintiff, a trespasser, was struck by a freight train while his foot was caught in a cattle guard in the defendant’s track, and seeks to recover damages for the injuries received. The engineer testified that when 375 feet from the cattle guard he saw the head and shoulders of some one who was swinging his hat. for the train to stop, and that he immediately did all lie could to stop the train. The t,rain consisted of five loaded and two empty freight cars equipped with air brakes. It was descending a grade of about 118,-feet tó the mile at a speed of five or six miles an hour. Two experts testified that under such circumstances the train should have been stopped within 50 to 200 feet from the place Where the power was first applied. / "
    
      Held, that the credibility of the experts was for the jury, since upon their-testimony -the engineer might be found negligent, and a nonsuit was error;
    That the trial judgecouldnot fairly pass upon the-probability of the truth of the evidence until after the jury had considered the cáse.
    Chester, J., dissented. ■ ' • -
    : Appeal by the plaintiff, William Thayer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of ilie clerk of the--county of Albany on the 2jth day of November," 1905, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.
    
      Fletcher W. Battershall \J. Newton Fiero of counsel], for the appellant.
    
      Harris cb Rudd [ William, P. Rudd of -counsel], for the respondent.
   Kellogg, J.:

The plaintiff caught his foot in a cattle guard in the defendant’s track and was run over by an approaching train, receiving serious injury for which he seeks to recover. It is conceded that the plaintiff had no business on the track, and the defendant was not called upon to exercise any care in looking out for his safety until it saw that he was in danger, and was then required to exercise the care which the known circumstances required to prevent an injury to the plaintiff. It, therefore, became necessary for the plaintiff affirmatively to show at what particular time before the accident the engineer of the train first saw that plaintiff was imperilled, and for that purpose he called the engineer who swore that when the engine was about 375 feet from the plaintiff the fireman notified him that some one at the cattle guard was swinging the train up, and he saw the plaintiff’s head and shoulders, but by reason of an obstruction could not see the remainder of the plaintiff’s- person. Upon cross-examination the witness swore that he immediately did all that he could to stop the train. The plaintiff saw the train and-was swinging his hat as a warning all the while the train was approaching. The train consisted of five loaded freight cars, two empty cars, the engine and tender. The engine and some of the cars were equipped with air brakes. The brakes when tested .just before the accident worked properly, and it is not shown that any of the appliances of the train or engine failed to act properly. At a speed of five or six miles per hour the train was descending a grade of about 107 to 187 feet per mile, or an average grade of about 148 and 84 /100 feet per mile. It stopped about 325 feet, beyond the cattle guard, or about 700 feet from the place -where the engineer first saw plaintiff’s position." The track was in good condition.

The plaintiff called two witnesses who qualified as experts in the management of a train, the conditions governing this train were stated and their testimony tended to show that if the engineer had. done what he says he did the train should have been stopped within 50 to 200 feet of the place where the power was first applied. The. plaintiff contended that this evidence presented the question of fact'for the jury whether, after the emergency was known to the engineer, he did what reasonably could have .been done to stop his train. The engineer of the train was the party at fault, if there was any fault with the defendant, and that fact was proper to consider with reference to his credibility. While we may feel that it is not entirely probable that this train, upon such a grade, could be stopped within the' distance indicated by the expert's, the question of their credibility, and the probability of their testimony, rested with the jury, and not with the court in the first instance.

In reviewing this nonsuit • we must assume the most favorable view of the evidence in favor of the plaintiff, giving Inna the benefit of any inferences which may properly be drawn from it. The jury might have found, upon all the evidence, that the engineer did not make a proper effort to stop the train, and that if he had done all he could do to stop it the accident would not have happened. After verdict found the presiding justice has a right to order a new trial if he feels that it is based upon evidence which is entirely unreliable and improbable. But he could not fairly pass upon those questions until after the' jury had considered' the case. The judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Chester, J., dissenting; Parker, P. J.,. not voting. •

■Judgment reversed and new trial granted, with costs to appellant to abide event.  