Opinion
June 29, 1908.
Gustav R. Hamburger, for the appellant.
John F. Brennan, for the respondent.
The plaintiff made a case which, in our judgment, entitled him to go to the jury. The complaint having been dismissed at the close of plaintiff's case, the appellant is entitled to the most favorable view which a jury might properly have taken of the evidence, and the theory on which the complaint was dismissed, that the plaintiff had failed to show absence of contributory negligence, is not sustained by the testimony in this case. Plaintiff's intestate was struck by a south-bound train on the defendant's double-track railroad while crossing from her home on the west side of the tracks to a roadway on the east side, by means of a private crossing which had been maintained for many years. The plaintiff testified that his wife left the house to cross the tracks to overtake the witness' mother-in-law, who had preceded her; that the witness called to her to look out for the train; that the deceased stopped when about four feet from the north-bound track and looked for an approaching train; that she then started forward toward the south-bound track, about fifteen feet away, and that as she reached the south-bound track she was struck by the south-bound train and killed. There was some evidence that at the point where the deceased stopped to look the view was obstructed, so that a train could not be seen more than one hundred and fifty feet away, but that this view became extended to about half a mile as the south-bound track was approached, and it appears to have been the theory of the court that it was the duty of the plaintiff to show that his intestate looked at a time when she could have seen the greater distance, and that a failure to show this established contributory negligence as a matter of law. The fact of the plaintiff's intestate stopping to look for a train when within four feet of the north-bound track, which was only about fifteen feet from the south-bound track, was some evidence of care on her part; it showed that she had in mind the danger and the purpose to avoid it, and the mere fact that she was not shown to have stopped and looked again in passing over a space of fifteen feet is hardly conclusive against the right of this plaintiff. The law of negligence is not based upon the highest possible degree of care, nor even the degree of care which a highly prudent person would use, but upon the average of reasonable care; the degree of care that twelve men, selected at random from the vicinage, will say is reasonable under all the circumstances. It is well established that where the facts are such that reasonable-minded men might differ as to what is reasonable care, it is the duty of the court to submit the question to the jury, even in a case where the court might feel that it was its duty to set aside a verdict, and we are of the opinion that this was a case in which the plaintiff had some evidence to support his cause of action, and that the jury should have been permitted to pass upon it.
The judgment and order appealed from should be reversed and a new trial should be granted, costs to abide the event.
JENKS, HOOKER, GAYNOR, and RICH, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.