The only question presented in this case is, whether it was error in the judge at the circuit to refuse to non-suit the plaintiff “ for want of care on his part.”
It was held by this court, in the case of The Central Railroad Company v. Moore, 4 Zab. 824, that a plaintiff suing for an injury caused by the negligence of the defendant, will not be entitled to recover if his own negligence contributed to the injury and that when the facts are clear and undisputed, and show a want of ordinary care on the part of the plaintiff, the question should be decided by the court; but if the evidence is doubtful, and the inferences to be drawn from it questionable, it is for the jury to determine. In my opinion, this was clearly a case for the jury. The plaintiff was in the act of crossing the railway in the city of Newark, at a place commonly used, and furnished with planking for that purpose. A train in plain sight was coming from the direction of New York, at a speed of twenty-five miles an hour, a rate exceeding that fixed by the ordinance of the city. He appears to have stood watching this train, on a track used for coal cars, there being another track between him and the track upon which the New York train was running. As soon as this train passed, he stepped upon the track next to him for the purpose of crossing, and was struck by a train coming from Elizabeth, which, it was stated, rang no bell and blew no whistle.
Under such circumstances, the inferences to be drawn from the facts detailed by the witnesses, were properly submitted to the jury. They were quite as doubtful as those in the case of Central Railroad v. Moore. As I had occasion to remark then, it would be a plain case which will justify a court of errors in reversing a judgment because the judge declined to order a non-suit.
In my opinion the judgment should be affirmed.
*433For affirmance — Beasley, C. J., Elmer, Vredenburgh, Bedle, Dalrimple, Woodhull, Depue, Ogden, Fort, Wales, Clement, Vail. 12.
For reversal — Kennedy. 1.
Cited in Del., Lack & W. R. R. Co. v. Toffey, 9 Vr. 529.