From the evidence it appears that the engineer, being able to see the freight-train and switch at some distance from them, was fully aware that his train was to take the side-track at the switch, and that a flagman should be in the neighborhood of the switch to warn him that it was open. It would, therefore, seem that he should have been particularly on the lookout for such a person. In spite of this, according to his own testimony,- he approached the switch at the rate of 20 miles an hour, and did not see the flagman lying across the rail until within 100 feet, when it was too late to stop. He testified that the flagman was 250 j^ards from the switch; and that there was nothing to obstruct his view, except the grass, which, he said, concealed the body of the man. The questions then arise, whether, under these circumstances, ordinary prudence would require that the servants in charge of the train should have run at a lower rate of speed, or should have scanned the track more closely with a view of ascertaining the whereabouts of the flagman. Under these circumstances, it could not be held as a matter of law that the servants of the defendant, engaged in the operation of the cars and other machinery, were in the exercise of all ordinary and reasonable care and diligence at the time of the commission of the injury. The question of negligence should have *58been submitted to the jury, and it was erroneous for the court, upon the theory of no negligence being shown which was chargeable to the defendant, to direct a verdict in its favor. Nor was the court authorized to direct a verdict for the defendant on the theory that the plaintiff’s negligence caused or contributed to the injury, or that the plaintiff, by the exercise of ordinary care, could have avoided the result of the defendant’s negligence. These presented questions for determination by the jury, just as negligence is a question for the jury when it is sought to be charged upon the defendant. The plaintiff’s testimony as to the circumstances under which he was injured was sufficient, upon the standpoint of his own conduct, to carry the question to the jury.
Judgment reversed.
All the Justices concur, except Fish, G J., absent.