Di Sario v. New York, Ontario & Western Railway Co.

Kellogg, J.:

The fact that the north-bound train at this place had never proceeded upon the south-bound track gave the intestate a certain right to assume that that course would not be departed from. He undoubtedly saw the reflection of the headlight; he may have heard the whistle a half a mile away; but that did not give him warning that the train was upon the wrong track. The instructions to the engineer to give the necessary signals in order to notify men of the change in the course of the train did not necessarily imply that the whistle would only be, sounded every half mile. The curves in the track, the embankment, the whole situation, present a question for the jury to determine whether a sufficient warning was given the intestate that a change had been made in the plan of running this train. If the track had been straight perhaps he could more easily have determined upon which track the engine was coming ; but the curve in the track before it reached him threw a greater uncertainty upon it. The washout upon which Brennan and the men were working does not appear of such a character as to notify or warn the intestate' that the train, could not pass upon . that track. Apparently, from its condition, as described, he might assume that the train could pass over it. The intelligence of the man, the condition of the track, the curves and all the circumstances are proper questions for the jury to consider in determining whether the intestate acted as an ordinarily prudent man in his position would act or whether he was guilty of a carelessness which brought about his death. It was for the jury to determine whether'lie knew or had sufficient notice that the train was proceeding upon the southerly track, or whether lie felt that he was proceeding in a safe place, notwithstanding the fact that he could hear the rumbling of the train and see the reflection of- the lights. Brennan swears that he had told the men when a train was coming on either track to get off from both tracks ; but the evidence tends to show that he and his gang continued to work upon the north-bound track while the train was passing them on the south-bound track, after they discovered upon which track it was proceeding.

. It cannot he said, as matter of law, that- the defendant gave the intestate sufficient warning,, or that the intestate was guilty of ueg ligence which caused his death. ■ ■

The judgment should, therefore, he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., and Sewell, J., dissenting.

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