O'Neill v. Chicago & N. W. Ry. Co.

McCrary, Circuit Judge. I am inclined to the opinion that the tenth instruction given to the jury was erroneous, in that it did not leave it for the jury to say whether, under the circumstances, it was the duty of the fireman (Riggs) to have given to the engineer more definite and explicit warning concerning the plaintiff’s peril. It is doubtful whether the circumstances of this case bring it within the rule that, the facts being established, the court may determine the question of negligence as a question of law. It probably belongs to that other class in which, although the facts be undisputed, different minds might honestly draw-different conclusions therefrom; and, if so, the question is for the jury. As the verdict is for less than $5,000, and therefore a judgment rendered thereon could not be reviewed upon writ of error by the supreme court, I am constrained to resolve my doubts in favor of a new trial. The motion is sustained. Railroad Co. v. McElwee, 67 Pa. St. 315; Railroad Co. v. Stout, 17 Wall. 659; Railroad Co. v. Van Steinberg, 17 Mich. 99; Gillespie v. City of Newburgh, 54 N. Y. 468; City of Rockford v. Hildebrand, 61 Ill. 155.