Opinion
January 26, 1906.
A.H.F. Seeger, for the appellant.
Charles Morschauser [ Samuel K. Phillips with him on the brief], for the respondent.
The case was for the jury. The deceased had the right to walk along the track, but with that right went by law a duty for him to be ordinarily vigilant with eye and ear to know when a car was coming, and to be out of the way before it got to him, so as not to stop it, or even make it slow up, for it had the right of way. But considering that the electric cars ran only about once an hour, and the distraction of the passing steam freight train along the side of the highway about sixteen feet away, it was too much to say as matter of law that the deceased was negligent in not knowing the electric car was coming up so close behind him, especially as no bell was rung or warning given on it.
The judgment should be reversed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.