GUNN v. UNION RAILROAD CO

(1) Negligence. Due Care. Street Railways. While the presence of a coal-wagon on a street drawn up close to the curb-stone imposes upon the motorman of an electric car the duty of proceeding with caution, he is not bound to anticipate and provide for the action of the plaintiff (an employee assisting in unloading the wagon) in suddenly stepping backwards toward the track.

PER CURIAM.

The great preponderance of the evidence shows that the accident was occasioned by the plaintiff suddenly backing out towards the track so that the car, which was proceeding at moderate speed, could not have been stopped in time to avoid him.

There is no evidence that the motorman was guilty of any neglect of duty.

While the presence of the coal-wagon on the street imposed upon the motorman the duty to proceed with caution, we do not think he was bound to anticipate and provide for the action of the plaintiff in suddenly stepping backwards toward the track.

Petition for new trial granted.