On the hearing of the former appeal in this action the general term of this court, upon the facts disclosed on the trial, held as follows (Opinion of Yah Bbuht, J., concurred in by Beach, J., Labbemobe, J., dissenting): “ It further appears that when the engineer and fireman of the down train first saw the boy after he had fallen he was lying in a position where the train would not strike him, but that after the train had almost passed him the boy moved and was struck. They were certainly not required to stop the train in case they could pass the boy without injury, and they certainly were not guilty pf wanton negligence by going on. Upon the proof as it stands no cause of action was made out against the defendants.”
The proof on the new trial, on the point referred to, was the same as on the first trial. The boy jumped or fell from the up train and lay between the up and down tracks in such a position that a train on the down track could pass him in safety if he made no incautious movement to bring himself nearer the down track. The engine, tender, and two first cars of a train on the down track passed his prostrate body without touching, when, by a sudden movement, the deceased threw his legs under the hind wheels of the last car and thereby sustained injuries from which he died.
We are bound by the decision on these facts already announced by the court. I can say for myself, however, that the conclusion thus reached is reasonable. There was no negligence *264on the part of the defendant’s servants in charge of the down. train. They saw the deceased lying in such a position that they could pass him without touching. They would have so passed if he had not made an imprudent movement that thrust his body into danger. That movement was unexpected and unforeseen, and could not be expected to enter into ordinary human calculations of probabilities. The engineer was not in fault, therefore, for not talcing the possibility of such a movement into account, and for not stopping the train to prevent accident from such a cause.
Had the deceased been lying on the track, where he must have been struck if he had not moved, the case would have been different. The engineer here saw him out of danger. The case does not resemble those in which, the deceased lying asleep or standing on the track, the engineer supposed the object to be something inanimate and took the risk of its turning out to be a human being. The element of danger and certainty of injury was present in those cases. In thus acting, upon the state of things as they stood when the engineer saw them and as long as he could see them, there was do danger.
The judgment should be affirmed, with costs.
Van Brunt, J., concurred.
Judgment affirmed, with costs.