Negligence. Street Railway. In an action against a street railway company for personal injuries, if the plaintiff testifies that, late in the afternoon of a day in December when it was very dark, he was driving in a heavy express wagon, ten feet long, and swung his horse around upon the track of the defendant's railway for the purpose of backing up in front of a house to unload a barrel of flour, that before doing so, and also as he swung his horse around, he looked and listened in both directions and saw no car and heard no noise, gong or signal, and as he swung his horse back on the track again for the purpose of backing up and unloading he saw, by means of the light reflected on its side, a car approaching, without any headlight and giving no signal of its approach, one hundred feet or one hundred yards away and coming toward him fast, that he shouted to his horse to go ahead and the horse got across the track but the back of the wagon was struck by the car and the plaintiff was thrown out and injured, and if the motorman testifies that he rang his gong and that when he saw the wagon driven by the plaintiff about fifty feet ahead he shut off the power, reversed the motors and put on the air emergency brake, and had reduced the speed of the car to ten miles an hour when the collision occurred, and if both he and the conductor testify that the headlight was lighted, the questions, whether the plaintiff used due care in the management of his team and in his efforts to ascertain whether a car was approaching and whether the defendant was negligent in the management and equipment of its car, are questions of fact to be submitted to the jury.
HAMMOND, J.
As frequently happens in cases of this kind, the evidence as to many of the material points was very conflicting. We have carefully examined it, and are of opinion that the questions whether the plaintiff in the management of his team and in his efforts to ascertain whether a car was approaching used due care, and whether the defendant in the management and equipment of its car was negligent, were questions of fact and not of law. The case was properly submitted to the jury.
Exceptions overruled.