Plaintiff was driving a truck along a public highway, in the daytime. He waited at a double track crossing for the passing of a slow freight. He then proceeded, with his truck, across the track and was struck by a fast passenger train going in the opposite direction on the other track. He sued the railroad company to recover damages for his injuries. The first trial resulted in a verdict in his favor; which the trial court set aside, on the ground that it was against the weight of evidence. The case was retried and on that trial, at the close of plaintiff’s evidence, the court entered a judgment in favor of the railroad company, on the ground that the plaintiff was guilty of contributory negligence as a matter of law.
On error the Court of Appeals held as follows :—
If the facts, although undisputed, are such that different minds may reasonably differ as to whether the party exercised such care and caution as prudent persons are accustomed to exercise under the same or similar circumstances, then the question of contributory negligence must be submitted to the jury. The circumstances of this accident were submitted to one jury, which determined that the plaintiff was not guilty of contributory negligence, and the trial judge determined that such evidence was against the weight of the evidence.
We have read and considered the evidence, and think that when all the facts and circumstances are considered, different minds might reasonably arrive at different conclusions as to whether or not plaintiff was guilty of contributory negligence.'
Judgment revresed.
(Washburn, PJ., Funk, J., and Pardee, J. concur).Note: OS. Pend, opinion will be found in 5 Abs. 472.