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Fuller (P) was a 70-year-old man who drove his wagon across railroad tracks. As he did so, a train came down the track at 40 mph. P was in plain view for 660 feet from the crossing D's engineer blew the whistle and could have stopped the light train within 200 feet. The engineer did not stop the train but did give one whistle blast 20 seconds before impact. P was killed, and his estate sued for negligence. P alleged that D's servant has the last clear chance to avoid injury. The judgment went to D and P appealed.

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