DENISON, Circuit Judge,
Crouse was run over by a car of the railroad company and killed. His administratrix recovered a judgment in the court below. The railroad company seeks a reversal upon two grounds only: First, that Crouse’s contributory negligence was so clear as to require an instructed verdict for the defendant; and, second, that the court gave erroneous instruction in submitting to the jury the rule of last clear chance.
A witness for the plaintiff, who saw the occurrence, testified that Crouse stepped upon the railroad track and turned to the right, and walked along thereon without looking to the left, or back, and entered on the track at a time when the approaching car was only 30 feet from him; but this is not the whole case. Plaintiff was not bound by this testimony in any arbitrary way, but was entitled to go to the jury upon the theory that this witness was mistaken, and upon inferences which might rightly be drawn from plaintiff’s other testimony and from defendant’s testimony. From these it might be inferred that Crouse, like others, was licensed to use this railroad track as a walk to a factory close by; that the car had been kicked upon this side track, proceeding at a speed of 25 or 30 miles an hour; that when Crouse stepped upon the track, the approaching car was not visible— being hidden by buildings — and that he was hit within 6 or 8 seconds after he turned along the track. There is no rule of law which imperatively makes it negligence for a licensee, walking along a railroad track, to neglect to look back during a period of 6 or 8 seconds, if the track behind him was clear when he entered upon it.
It is a theoretical possibility upon the record — though it seems improbable — that plaintiff recovered in spite of Crouse’s contributory negligence, and upon the rule of the last clear chance. Upon this subject the court gave a charge covering a page of the record and involving several points. The defendant merely excepted to the charge on this subject. The exception was not good, unless that part of the charge was all bad; and it cannot be so considered, unless there was nothing in the record justifying any submission to the jury upon that theory. The claim that there was nothing does not appear to have been made to the District Judge, but, if it was, it could not be successfully maintained. The evidence which most strongly tended to show Crouse’s contributory negligence also tended to show that the car was moving slowly; that there was a considerable time, after the brakeman on the moving car saw Crouse and his danger, within which time the brakeman- might have stopped the car; but that he did not promptly enough try to do so. In the aspect of the evidence most favorable to support a recovery on this theory, there was a case for submission to the jury.
The judgment is affirmed.