AMERICAN

NEGLIGENCE REPORTS.

WHITE v. SOUTHERN PACIFIC COMPANY.

Supreme Court, California, October, 1898.

NEGLI.

COLLISION AT RAILROAD CROSSING — CONTRIBUTORY GENCE. Plaintiff was not guilty of contributory negligence where it appeared that while driving at a walk he approached from the east defend. ant's railroad tracks running north and south; that on reaching the tracks his view was interrupted towards the south by box cars blocking his passageway over the street to the width of about fifteen feet; that he looked and listened and saw and heard no train approaching; that his view towards the north was clear, and, if a train with an engine at its head had been coming from the south, he could have seen the smokestack of the engine; that a person driving from the opposite direction, having a complete view towards the south, passed him, and did not indicate that a moving train was approaching; that he then drove past the first track at the end of the box cars and was injured by a freight train backing from the south, before he could avoid it (1).

San

Joaquin

DEPARTMENT I. Appeal from Superior Court, San County. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. DUDLEY & BUCK, for appellant. NICOL & ORR, for respondent.

1. The following are some recent cases that arose from collisions at crossings:

In FENNELL 7. HARRIS (Supreme Court, Pennsylvania, February, 1898), it appeared that a carter whose view of the tracks at a street crossing was obstructed, stopped, looked and listened and only attempted to cross when he found the safety gates open, VOL. V-1

and after being twice signaled by the flagman to do so, and when he first could view the tracks he saw a train rapidly approaching without warning and so near as to make escape impossible. It was held that he was not guilty of contributory negligence as matter of law.

In BOYDEN v. FITCHBURG R. R. Co. (Supreme Court, Vermont, January,

GAROUTTE, J. Defendant appeals from a judgment and order denying its motion for a new trial. The action was brought to recover damages for personal injuries. Plaintiff was in the act of driving across the railroad track of defendant, when a train approached, and, in attempting to save himself from a collision, he was thrown out of his vehicle, and injured. The matters involved in this appeal are few, and not of great importance. The negligence of defendant at the time of the accident is substantially conceded by its attorneys. Indeed, the testimony of its principal witnesses - employees indicates a degree of negligence upon its part in the handling of its train of cars closely approaching recklessness. But, to defeat plaintiff's right of action, it is insisted that he was guilty of contributory negligence, and for that reason it is claimed the evidence fails to authorize and justify the verdict of the jury. By reason of this contention we are brought to an examination of the salient facts of the case. Plaintiff, in a one-horse vehicle, was traveling westward upon Market street, a well-traveled street in the city of Stockton. He arrived at Sacramento street, which intersects Market street, and extends north and south. This street is covered by various railroad tracks of defendant, and is used constantly for 1898), it was held that a railroad was not relieved of duty to one crossing its tracks though he was traveling on Sunday in violation of the statute; that he stood no worse than an ordinary trespasser, and a railroad company owes a trespasser at least the duty not wilfully to run over him.

In MCCANNA 7. NEW ENGLAND R. R. Co. (Supreme Court, Rhode Island, March, 1898), it appeared that plaintiff was driving a spirited horse and approached a railroad crossing with which he was perfectly familiar from a direction from which an unobstructed view could be had for a considerable distance until the crossing was almost reached when the view would be obstructed by a bank covered with trees. His horse continued on a trot with a slack rein until within sixty or seventy feet of the crossing, when he heard the whistle of a regular train and it was too late for him to stop the horse, that plunged forward and into the rear of the third car, and plaintiff was thrown to the ground, and the horse died from

the injuries received. Held, that plaintiff was guilty of contributory negligence.

In FINLEY . CHICAGO, M. & ST. P. R'y Co. (Supreme Court, Minnesota. February, 1898), it appeared that the wagon was struck in which the plaintiff was riding with her husband, and it was held that his negligence, if any, was not imputable to her, and that it was a question for the jury whether she was guilty of contributory negli gence in failing herself to look and listen or to observe that her husband was not using due care to look and listen, if such was the fact.

In CHICAGO, B. & Q. R. R. v. POLLARD (Supreme Court, Nebraska, February, 1898), it appeared that plaintiff knew that a train called the

Flyer," that went by the crossing at about the rate of thirty miles an hour, was about due as he approached the crossing, and that while he was looking down the track for it his attention was attracted by smoke in the opposite direction, and by the time he turned to

railroad purposes. When plaintiff approached Sacramento street, he found a detached train of box cars resting upon the track nearest to him. These cars extended to the south upon the street, and blocked his passageway over Market street to the width of about fifteen feet. He passed over this first track at the end of these box cars, and at the moment his horse stepped upon the next track, which was but a few feet distant, a freight train, backing from the south, was upon him, and in his efforts to escape, he was injured. There is some conflicting evidence as to the ringing of the bell of the engine at the time of the accident, or, to be more exact, it may be said there was some conflict in the evidence as to whether or not plaintiff heard the engine bell ringing. But we attach no special importance to this matter. The ringing of a bell or the blowing of a whistle upon a train that is traveling backward is calculated to deceive a traveler upon the highway. The distance of the alarm from the real point of danger well serves the purpose of lulling the traveler into a false sense of security. This is essentially true where the traveler upon the highway, by reason of obstructions near the track, cannot see the approaching train, and therefore is compelled to depend largely upon his sense of hearing alone. In this case a sight of the approaching train was entirely denied plaintiff by reason of the

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again look for the " Flyer " his horses were on the track, and an engine al most upon him, and too late for him to avoid the collision which followed. The view of the track immediately before reaching it was slightly obstructed. The court held that the question of contributory negligence was for the jury.

In SCHNEIDER v. CHICAGO, M. & ST. P. R'y Co. (Supreme Court, Wisconsin, May, 1898), it was held that one was guilty of contributory negligence who knowing that a train was about due drove to the crossing in a closed milk wagon containing milk cans, beer kegs and other noisy articles that made more or less noise as the wagon passed over the frozen ground with the rear of it towards the expected train, without stopping to look after he was nearer the track than eighty feet from it, though at that point one could not see the train more than forty-four rods away, while at about sixty feet from

the track, the train could be seen when 139 rods distant.

In BOND V. LAKE SHORE & M. S. R'Y Co. (Supreme Court, Michigan, July, 1898), the plaintiff was held to be guilty of contributory negligence as matter of law where it appeared that as she was approaching a crossing she heard a whistle at a station near by, and supposing it was on another road, she went ahead until she heard the alarm whistle when so near the track that she did not dare to stop, but whipped her horse in an attempt to get across and was struck by the train; that she was partially deaf and had the curtains on her buggy closed; that she had lived for fifteen years near the crossing and knew that a train was about due at the time; that the view of the track was unobstructed for a distance of 200 feet before reaching it so that the train could be seen from the time it left the station.

GAROUTTE, J.-Defendant appeals from a judgment and order denying its motion for a new trial. The action was brought to recover damages for personal injuries. Plaintiff was in the act of driving across the railroad track of defendant, when a train approached, and, in attempting to save himself from a collision, he was thrown out of his vehicle, and injured. The matters involved in this appeal are few, and not of great importance. The negligence of defendant at the time of the accident is substantially conceded by its attorneys. Indeed, the testimony of its principal witnesses -employees indicates a degree of negligence upon its part in the handling of its train of cars closely approaching recklessness. But, to defeat plaintiff's right of action, it is insisted that he was guilty of contributory negligence, and for that reason it is claimed the evidence fails to authorize and justify the verdict of the jury. By reason of this contention we are brought to an examination of the salient facts of the case. Plaintiff, in a one-horse vehicle, was traveling westward upon Market street, a well-traveled street in the city of Stockton. He arrived at Sacramento street, which intersects Market street, and extends north and south. This street is covered by various railroad tracks of defendant, and is used constantly for

1898), it was held that a railroad was not relieved of duty to one crossing its tracks though he was traveling on Sunday in violation of the statute; that he stood no worse than an ordinary trespasser, and a railroad company owes a trespasser at least the duty not wilfully to run over him.

In MCCANNA 7. NEW ENGLAND R. R. Co. (Supreme Court, Rhode Island, March, 1898), it appeared that plaintiff was driving a spirited horse and approached a railroad crossing with which he was perfectly familiar from a direction from which an unobstructed view could be had for a considerable distance until the crossing was almost reached when the view would be obstructed by a bank covered with trees. His horse continued on a trot with a slack rein until within sixty or seventy feet of the crossing, when he heard the whistle of a regular train and it was too late for him to stop the horse, that plunged forward and into the rear of the third car, and plaintiff was thrown to the ground, and the horse died from

the injuries received. Held, that plaintiff was guilty of contributory negligence.

In FINLEY V. CHICAGO, M. & ST. P. R'Y Co. (Supreme Court, Minnesota. February, 1898), it appeared that the wagon was struck in which the plaintiff was riding with her husband, and it was held that his negligence, if any, was not imputable to her, and that it was a question for the jury whether she was guilty of contributory negli gence in failing herself to look and listen or to observe that her husband was not using due care to look and listen, if such was the fact.

In CHICAGO, B. & Q. R. R. C. v. POLLARD (Supreme Court, Nebraska, February, 1898), it appeared that plaintiff knew that a train called the "Flyer," that went by the crossing at about the rate of thirty miles an hour, was about due as he approached the crossing, and that while he was looking down the track for it his attention was attracted by smoke in the opposite direction, and by the time he turned to