Even at the high rate of speed at which the car was going before the air brakes were applied, it was not more than fifteen times the ordinary speed at which a person walks. When the motorman first applied his air brakes, the intestate must have been upon or near the tracks and his conduct must have been such as to indicate that there was danger of his being hit. While the car was going two hundred feet at a speed which was being continually reduced by the efforts to stop it, the intestate had ample time to get off the tracks if he was on them — to refrain from going thereon if he was not yet on them — or of crossing them if but a few feet distant away. It does not appear just what the intestate did. The record does not disclose any facts from which it can be inferred that the intestate exercised any care whatever at the time and place of the accident.
WILLARD BARTLETT, Ch. J., HISCOCK, CUDDEBACK, HOGAN and SEABURY, JJ., concur with MILLER, J.; CHASE, J., reads dissenting memorandum.
Judgment reversed, etc. *Page 308