David Josiah Brewer

“ The only error assigned is in the refusal of the court to instruct the jury, as requested, substantially, that the deceased was guilty of such contributory negligence as to prevent a recovery. It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them. ”

“ After they had all alighted from the car, they started together in the direction of the eating house, as disclosed by the bonfire, without knowledge of an intervening track, or without thought of an approaching train. No bell was run, no warning given, until the moment of the accident, and then too late for all of the party to save themselves.
It seems as though there could be but one answer to these questions. If these facts do not establish due care on his part, they at least tend very strongly to prove it. It is true that there was testimony tending to show a different state of facts ”