I concur with Judge DESMOND in so far as he finds that a question of fact was presented as to whether the agent of the defendant, when the deceased was first removed from the track, exercised such care and caution as was required under the circumstances.
It is asserted that there was insufficient evidence to take the case to the jury on the question of the negligent operation of the train or that, if there was negligence, it was not the proximate cause of the accident. With that conclusion I cannot agree. The question here is not as to the weight to be accorded to the evidence of witnesses nor are we permitted to pass upon the question of credibility and there was some evidence indicating that the motorman had ample opportunity of observing the situation in which the deceased was placed when he went off the platform in front of the oncoming train to enable him, if he acted with reasonable promptness, to stop the train before the accident occurred. Reasonable care demanded that he observe and act upon the signals given him by a passenger on the platform of the position of the deceased. The train was operated a distance of at least 145 feet beyond the point where the defendant's motorman might have observed the position of the deceased, the tracks and surroundings were well lighted and the motorman made no effort to stop his train and failed to apply his brakes until after he had struck the deceased. The approach to the station was around a curve. Under the rules, since that circumstance was present, the motorman was prohibited from operating in excess of nine miles per hour. Yet there was evidence that the train could be normally stopped in *Page 325 an emergency when operating at twenty-five miles per hour within a distance of eighty feet. Without pursuing the matter further it is sufficient to say that upon this record there was evidence to go to the jury upon the question as to whether the train was operated with such care and caution under the existing circumstances as ordinary prudence required and whether the lack thereof, if any, was the proximate cause of the accident.
Consequently, I believe that the judgment should be reversed and the verdict reinstated, with costs. However, a majority of the court do not agree with me on the sufficiency of the evidence to warrant submission to the jury of the question of the negligence of the motorman and, in those circumstances, it becomes necessary for me to concur in the granting of a new trial and leave it to the plaintiff to supply, if possible and if she is so advised, such deficiency of proof as may exist in the present record in that respect.
FINCH, J., concurs with DESMOND, J.; RIPPEY, J., concurs in part in separate memorandum in which CONWAY, J., concurs; LEHMAN, Ch. J., LOUGHRAN and LEWIS, JJ., dissent.
Judgments reversed, etc. *Page 326