Fulmer v. Illinois Central R. R.

Woods, C. J., delivered the opinion of the court. The naked fact of Fulmer’s presence on the track of the defendant’s railway was not per se negligence. He might assume that the railroad company would not run its engines and cars in a populous town in flagrant disregard of law; he might assume that the railroad company would not undertake the highly hazardous attempt to make a flying-switch, on a sharp down grade over two public crossings, in close proximity to each other, in the heart of a business community, at a speed of fifteen or twenty miles an hour; and, especially, he might assume that the railroad company would not venture upon the last-named attempt without giving some [359] warning to the public, and without putting some employe, with proper appliances, in such a position as to guard against, and, at least, make some effort to prevent running down citizens who were almost constantly using the public crossings in the town. Under all the circumstances disclosed in the record, the court should have permitted the jury, under proper instructions, to say whether the deceased was or was not guilty of contributory negligence. The evidence of the negligence of the deceased was not overwhelming and uncontroverted, and the case should have been given to the jury. Reversed and remanded.