
    No. 427
    PENNA R. CO. v. CROUSE, Admx.
    U. S. Appeals Court, Sixth Circuit
    No. 3746.
    Feb. 6, 1923.
    286 Fed. Rep. 376
    EVIDENCE — (1) Right of party to infer his witness was mistaken — (2) Walking on railroad track, not imperatively negligence not to look back — (3) Entire charge must be bad, or general exceptions not good.
    Circuit Judges — Knappen, Denison and Donahue
    Error to U. S. Dist. Court, N. D. Ohio, E. D. Westenhaver, J.
    Judgment for Plaintiff Crouse Affirmed
    Attorneys — U. C. De Ford (Harrington, De Ford, Huxley & Smith, on the brief), for the Railroad; E. H. Moore ( Moore, Barnum & Hammond and Beard & Beard, on the brief), Contra.
   DENISON, C. J.

Epitomized Opinion

A witness for the plaintiff testified that he saw he accident; that Crouse stepped upon the railroad rack and turned to the right and walked along hereon without looking to • the left, or back, and mtered upon the track at a time when an approach-ng car was only 30 feet from him, by which he vas run over and killed. His administratrix de-endant herein recovered a judgment in the district ourt, which a reversal of is sought by the railroad, m two grounds: (1) That Crouse’s contributory íegliegence mas so clear as to require an instructed rerdict for it; and (2) that the court gave erroneous nstruction in submitting to the jury the rule of ast clear chance. The court of appeals held:

1. That the plaintiff was not bound by the testi-nony of one of her witnesses, as to how the acei-lent occurred, but was entitled to go to the jury ipon the theory that this witness was mistaken, and ipon inferences which might rightly be drawn from ;he testimony of her other witnesses and from lefendant’s testimony.

2. There is no rule of law which imperatively nakes it negligence for a licensee, walking along a •ailroad track, to neglect to look back during a jeriod of six or eight seconds, if the track behind lim was clear when he entered upon it.

3. Tbe trial court gave a charge to the jury tovering a page of the record and involving several joints, upon contributory negligence and the rule jf last clear chance. The defendant merely excepted ;o the charge on this subject. This exception was rot good, unless there was nothing in the record ¡ustifying any submission to the jury upon that ffieory. The evidence which most strongly tended ;o show Crouse’s contributory negligence also tended ;o show that the car was moving slowly; that there was a considerable time after the brakeman on the moving car saw Crouse and his danger, within which ;ime the brakeman might have stopped the car; jut that he did not promptly enough try to do so. In the aspect of the evidence most favorable to support a recovery on this theory, there was a case for submission to the jury.  