120 F. 258 | 6th Cir. | 1903
after making the foregoing statement of the case, delivered the opinion of the court.
The negligence imputed to the defendants was the failure to blow the whistle and ring the bell when approaching the crossing, where
The only error urged in this court is the refusal of the trial judge to give a peremptory instruction for the jury to find a verdict for the defendants on account of the contributory negligence of the plaintiff. This could only have been done if, from the evidence, all reasonable men would have drawn the conclusion that the plaintiff did not exercise that degree of care which, under the circumstances, a prudent person should have exercised. The law in this class of cases is so well settled that a citation of authorities is unnecessary. Each case must be judged in the light of the circumstances surrounding it. The defendants urge that the plaintiff was negligent in failing to discover the approaching train before he arrived at the crossing. They claim he did not look, or, if he did look, as he testified he did, it was so negligently done that he failed to see the train, which must have been in sight for 200 feet before he got behind the coal shed, which hid it from his view. The plaintiff and some of his witnesses, on the other hand, testified that at the time the plaintiff started from the blacksmith shop the Baltimore & Ohio train was east of the Detroit & Dima Northern track, which they testified was blocked by a train, which, with the obstructions on the north side of the Baltimore & Ohio track, made it impossible for the plaintiff to see the train at any time while he was going from the blacksmith shop to the place where the accident occurred. Giving this testimony every inference which can be drawn from it in favor of the plaintiff, as must be done in determining whether the court would have been justified in directing a verdict, it cannot be said that all reasonable men would have come to the conclusion that the plaintiff was negligent in not seeing the approaching train. The crossing, by reason of the obstructions, was peculiarly dangerous; and it is urged that, if an approaching train from the east could not be seen, it was incumbent on the plaintiff to be more vigilant in an endeavor to ascertain its presence by the use of his hearing. This, he testified, he did, and he ■ is corroborated by another witness, who was at the time walking on the sidewalk near the place of the accident. The plaintiff says that when he came to the crossing he stopped, and, not being able to see-east, he listened, but could hear no sound of an approaching train.. He also says that his horses always became frightened at the cars,, and that while he was listening he watched them, and they showed no sign of fright, and, becoming satisfied of his safety, he drove onto the track. Under this testimony it seems to us that it was the duty of the trial judge to submit the question of the negligence of the plaintiff to the jury, which he did in a very comprehensive and. clear charge, and the judgment is affirmed.
