Even if it be admitted that the plaintiff was a technical trespasser on the defendant’s private right of way, and that no duty rested on the defendant to keep a lookout for trespassers whose presence on the track it had no notice of or reason to expect, still it does not necessarily follow that the defendant was entitled to a verdict in its favor by binding direction. The statement of claim alleged that the plaintiff sustained damage to his property “by reason of the careless, negligent and willful disregard of the duty of said defendant” in certain particulars, which were then given, and concluded with a similar averment. There was evidence *614that it was a clear night; that there was a red light on the automobile which was stalled on the track; that there was an electric light near by, that the plaintiff and a companion went back 250 or 300 feet, met the approaching car, and shouted and waved their hats to attract the motorman’s attention; that at this place and time the red light on the automobile could be plainly seen; that the motorman stood with his elbows resting on the front sill of the window looking out; that he paid no heed to the warning signals; and that the speed of the car was not slackened. There was a conflict, of testimony as to some of these matters, but it was the province of the jury to decide them, and to decide whether or not the motorman saw the red light on the automobile, and heard and saw the warning signals given by the plaintiff and his companion. ' And if they found that he did, then the question arose, whether, under these circumstances, taking into consideration the place where the defendant’s private right of way was situate — in the center of a much traveled highway in a suburban residential district — the motorman exercised due care or proceeded recklessly and in willful disregard of the conditions and warnings he had seen and heard. This, also, I respectfully submit, was a question for the jury, the determination of which against the defendant would sustain a verdict in the plaintiff’s favor; for I cannot agree that there was no duty to exercise care under these circumstances. Therefore, I would affirm the judgment.