16 Ind. App. 21 | Ind. Ct. App. | 1896
Lead Opinion
On a former appeal this case was reversed on account of an error of the trial court in directing a verdict for the defendants. Neubacher v. Indianapolis Union R. W. Co., 134 Ind. 25.
The action is'by Louis Neubacher against the appellant, The Lake Erie & Western Railway Company, and the Chicago, etc., R. W. Co., commonly called the “Panhandle,” for damages for personal injuries alleged to have been received by Neubacher at the crossing of appellant’s railroad and South Delaware street, in the city of Indianapolis. Appellant hied a demurrer to the amended complaint, which was overruled and an exception saved. There was an answer in general denial, trial by jury, and a general verdict in favor of appellee, Neubacher, and against the appellant in the sum of $3,000.00. The jury also found in favor of the-other appellees, the Lake Erie & Western and the Chicago, etc., R. W. Co.
The errors assigned relate to the ruling of the court in overruling the demurrer to the complaint, in overruling appellant’s motion, and sustaining appellee’s motion for judgment on the answers to the interrogatories. The first mentioned error has been expressly waived. The second and third present the question of the appellant’s liability under the amended complaint and answers to interrogatories.
It is insisted in argument, on behalf of appellant: 1. That the answers to the interrogatories disclose that the negligence upon ivhich the jury held the appellant liable was not that or any of that charged in the complaint. 2. That the jury’s answers to the interrogatories show that the appellee, Neubacher, was guilty of contributory negligence.
As to the appellant, the Indianapolis Union Railway Company, the complaint charges the following facts: That appellant had for years owned various railroad tracks in Indianapolis, crossing various streets in the city and entering the Union Depot; that for that time these tracks had joined the tracks of various other railroad companies, including those of the “Panhandle” and Lake Erie companies, whose tracks also run through said city; that such connections and tracks were the means by which such other companies reached the Union Depot with their trains; that the connecting companies pay the Union company a rental for such use of its tracks; that the “Panhandle” is a “proprietary owner” in the Union company and has representation on its managing board; that South Delaware street in said city runs north and south, east from the Union Depot, and is
Appellant’s counsel, in their brief, have separated the several acts of negligence charged in the complaint, and stated them as follows:
1. Negligently allowing two of appellant’s licensees, the Lake Erie and Panhandle companies, in using its parallel tracks at Delaware street, to run a' west bound train of the Panhandle (pulling head on) and an east bound train of the Lake Erie (backing) over the crossing at almost the same time, and in so doing, the Panhandle train obstructed plaintiff’s view of the east bound track and of the Lake Erie train backing east thereon, and the noise of the bell of the Panhandle train and its rumble obliterated and rendered inaudible to the plaintiff the rumble of the Lake Erie train and of any warning it may have been giving by bell or otherwise.
3. That the Union company negligently allowed the Lake Erie train to run over the crossing and upon plaintiff at a rate of over four miles an hour, in violation of the city ordinance.
4. That the Union company (with the other defendants) negligently failed, at said time (time of the passing of the trains mentioned), to have a flagman at the crossing, or to have or use any other adequate, feasible, and reasonable means of giving warning.
5. That the Union company (with the other defendants) at said time negligently failed to have a gatekeeper at said crossing to close the gates.
6. That the Union company (with the other defendants) at said time, negligently failed to close the gates.
7. That the Union company (with the other defendants) negligently failed, at said time, to have, maintain and close safety gates on the south side of the crossing.
8. That the Union company (with the other defend-, ants) negligently failed, at said time, to have at the crossing a flagman provided with proper and conspicuous signals to warn travelers of approaching trains.
9. That the Union company (with the other defendants) negligently ran or allowed said Lake Erie & Western train to be run over the crossing and upon plaintiff, as aforesaid, without giving plaintiff timely notice of the approach of said L. E. & W. train.
The appellant argues that it was called to meet these issues, and none other; that if it did not (1) omit
The jury were required to answer a large number of interrogatories, 119 in all. We shall not undertake to set them out in this opinion.
The evidence is not in the record.
Of course, every presumption is in favor of the general verdict. If there were no answers to interrogatories, the presumption would be conclusive that the evidence makes out a case in favor of the plaintiff (appellee), according to the allegations of the complaint. But it is claimed that the answers to the interrogatories establish a different case from that stated in the complaint. If this is so, the answers to the interrogatories must clearly show it, for they can be allowed to overthrow the general verdict only when there is such antagonism upon the face of the record as is beyond any possibility of being removed by any evidence legitimately admissible under the issues. Gaar, Scott & Co. v. Rose, 3 Ind. App. 269, 275; Baldwin v. Shill, 3 Ind. App. 291, 298; Estate of Reeves v. Moore, 4 Ind. App. 492; Walter A. Wood, etc., Machine Co. v. Irons, 10 Ind. App. 454, 458; Phillips v. Michaels, Gdn., 11 Ind. App. 672; Chicago, etc., R. R. Co. v. Zimmerman, Admx., 12 Ind. App. 504; Louisville, etc., R. R. Co. v. Cronbach, Admr., 12 Ind. App. 666, 674.
Hence, the negligence charged in the complaint; or some of it, must be made out by the evidence. It is not sufficient to prove some other negligence with which the defendant might have been, but was not charged.
It was charged in the complaint that the train which struck the appellee and inflicted his injury was a Lake Erie & Western train. The answers to the interrogatories state that the jury do not know what train it was, nor whether it was a passenger or freight train. This we regard as equivalent to a finding that there was no evidence that the train which ran upon the appellee was a Lake Erie & Western train, and hence it must be admitted, we think, that that portion of the complaint which alleges that the appellee’s injuries were received from a Lake Erie & Western train was not established. It is not essential, however, that every averment in a complaint should be proved. It is sufficient if the material allegations be establishhed. Was this such an allegation as was required to be proved as laid?
We do not regard the allegation as to the identical train that injured appellee as material. All the trains in and about the Union Station were operated under the directions of the appellant. It was just as responsible for one as the other. Whether the appellant allowed a Lake Erie train or a train belonging to any
If the appellant had owned all the trains that were being operated in and about the Union Depot, and it had been averred in the complaint that the train which injured the appellee was train No. 5, when in fact it was train No. 4, we apprehend it would hardly be claimed that this was a fatal variance. So, in this case, the name or description or ownership of the train cuts but little, if any figure. The gist of the action did not lie in the infliction of the injury by reason of the ownership of the particular train that ran into the appellee. The complaint would have been good as against appellant without stating whose train it was.
The appellant’s duty was to see that none of the trains were operated in such a way that the signals required by them, or any one of them, were unavailing; not to permit such trains to be run at a greater speed than four miles per hour; to have a flagman at the crossing and to use other adequate means of giving warning; to have a gatekeeper to open and close the gates at the crossing when proper; to see that the gates were closed when a train was about to pass the crossing; not to allow any train to run over a crossing and upon a pedestrian thereat without giving the required notice of the approach of such train. The violation of these duties were the fundamental charges contained in the complaint and which the appellant was required to meet, and not the averment as to the particular kind of train it was which ran upon the appellee, or to whom it belonged, or how it was numbered or otherwise described, and the question is, to what extent, if any, were these charges established?
If we grant that the jury’s finding is such that no recovery can bé' had' upon the alleged negligence in allowing the running of the trains at an illegal rate of speed, there is still enough left not to antagonize the general verdict as to other negligent acts charged. The general verdict is a finding in favor of appellee on every material point, and unless the answers to interrogatories come squarely in conflict with it upon some point or points material to the recovery, the general verdict must stand, although it is in conflict, in other respects, with such answers of the jury.
The same is true respecting the question of contributory negligence. Antecedent to any verdict, it is
The answers to interrogatories show the following as to the place and manner in which appellee was injured: Delaware street is ninety feet wide, runs north and south, and crosses Pogue’s run at a point 150 feet west of the intersection of Virginia avenue and Alabama street, 150 feet east of Pennsylvania street, 1,170 feet east of the west side of Meridian street (east end of Union Depot), and all of these streets (Virginia avenue excepted) run parallel to Delaware street. South of Pogue’s run, Delaware street was crossed by a group of three tracks, known in this case as tracks Nos: 1, 2 and 3, and north of that stream by a group of five tracks, known in this case as tracks Nos. 1, 5, 6, 7 and 8. The two groups were separated by a bridge over the stream 100 feet long and of the
The jury, in answers to interrogatories, also stated that if appellee had waited on the south side of track 4,. or upon track 4, until the west bound train had moved farther west (how far west or how long the appellee should have waited they do not state), he could, by looking and listening, have seen and heard the east bound train in time to avoid the injury. They also found that he did not hear the east bound train because of the confusion of noises of the two trains, and he did not see it because the west bound train obstructed his vision. They expressly found that he looked both east and toward the Union Station (west) after starting across the track.
In answer to a question the jury also stated that they did not know why appellee did not see the train with which he collided in time to avoid it; and to another question, they answered that the train was not in plain sight.
We do not think the answers to the interrogatories conclusively show a case of negligence different from that stated in the complaint. It is shown that at least one of its legal duties was violated by the appellant as charged, viz: the duty of opening and closing the safety gates. There is nothing to show that the appellant was exempt from the performance of this duty after nightfall. On the contrary, it was its duty to operate the gates till 9 o’clock p. m. It is true appellee did not pass through the north gate himself, but when he saw it open, in the absence of a clear showing that he knew it was not being operated at night, he had the right to assume, we think, that it was safe to pass over the tracks, else the appellant would -have closed the gate.
It is also true, as appellant’s counsel contend, that
A feature of the negligence charged, or, perhaps, more correctly speaking, a reason for the requirement of special precautionary measures, was the running of trains so closely together on the tracks as to cause the noises made by such running to prevent a person attempting to cross, from hearing the distinct sound of the approaching train or its signals. To permit such noises and the passing of trains at such short intervals was not necessarily negligence, but it necessarily created additional danger to the pedestrian who might desire to cross, and brought with it the necessary requirement of providing such signals of warning as would be sure to apprise travelers over the crossing of the approach of trains. One of the precautionary measures was the ordinance requiring safety gates to be erected and operated. The failure to maintain and operate them, there, up to 9 o’clock at night, was in plain violation of the ordinance and was negligence. This negligence was charged in the complaint, and it is not shown that there was any failure to prove it. Even if it had been permissible to substitute the flagman before 9 o’clock, it was not shown that the latter gave any available signals. ,
Under the circumstances, we also think the question of contributory negligence was one for the jury. The mere fact that the appellee did not wait until the west bound train was so far out of the way as to en
It is expressly held in the case last cited that the mere fact that one passing over a railroad track at a highway crossing begins to cross at a time when his view along the tracks is obstructed by the departing train, is not. conclusive that such person did not use due care. Precisely the same point was also decided in Philadelphia-, etc., R. R. Co. v. Carr, 99 Pa. St 505. In that case the court was asked to charge the jury as
The court below refused to give this instruction, but charged as follows: “I have already told you that it was Mrs. Carr’s duty on approaching the track with a view of crossing it, to look and listen, to look in both directions, and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed in this case, by any cause — the approach of the up train in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that if she did not do so, it would necessarily be negligence, and preclude her recovery. What I say is, that it would have been a wise and proper precaution, as the event shows. Whether the omission of that precaution be negligence would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case she would necessarily be guilty of negligence in not waiting until the view of the other track
The Supreme Court upheld this instruction, saying: “The learned judge said all that could be said when he charged, that the act of the plaintiff in crossing as she did, might be negligent according to the circumstances, and the force of these he properly left to the determination of the jury. In this there was no error. We think the time has arrived when it would be well for all railroad companies, whose tracks cross the streets of cities and towns at grade, to protect all the street crossings with gates. The growing practice in this direction deserves commendation.”
Although the question as to what constitutes “due care” on the part of one about to pass over a railroad crossing is a legal one, such person being required to listen for signals, notice warning, signs, and look attentively both ways for approaching trains, yet whether the surroundings are such as to admit of these precautions is always a question to be determined by the jury, except in cases where all the ultimate facts have been found in a special verdict, and where only one inference can be drawn from such facts. Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39; Smith v. Wabash R. R. Co., supra.
In the case at bar there is no special verdict, the large number of interrogatories and answers thereto being supplemental to the general verdict only. There is nothing in the answers to the interrogatories which necessarily leads to the conclusion that if the appellee had properly exercised his faculties he would not haAre been hurt. It is difficult to lay down any rigid rule as to the exact moment a pedestrian who desires to pass a crossing of the character of the one
We have here a crossing containing a large number of parallel tracks upon which trains and single engines are constantly passing and repassing, to the number of hundreds in a single day. The circumstances attending the attempt to pass such a crossing are of course entirely different from those which usually prevail at a crossing in the country, or even in a city where the track is but a single or double one. The rules sought to be invoked by appellant’s learned counsel as to the quantum and kind of care required of a traveler about to go over a crossing are not so arbitrary or unbending as to be equally enforcible under all circumstances and in every surrounding. Such rules are enforced only when the circumstances make them reasonable. 2 Sher. & Redfield Negl. (4th ed.), section 477.
That in such cases the question of negligence or contributory negligence is usually one for the jury, see further: Young v. Detroit, etc., R. W. Co., 56 Mich. 430, 23 N.W. 67; Geveke v. Grand Rapids, etc., R. R. Co., 57 Mich. 589, 24 N.W. 675; Vicksburg, etc., R. R. Co. v. Alexander, 62 Miss. 496; Kellny v. Mo.
Judgment affirmed.
Rehearing
On Petition eor Rehearing.
Appellant’s learned counsel make a strong and plausible argument in their brief on petition for a rehearing in support of the position that appellee was shown to be guilty of contributory negligence in attempting to pass over the railway crossing so soon after the passing of the west bound train, and at their urgent insistence we have given the questions involved a second careful consideration. There is much to be said, it must be admitted, in favor of the position taken by counsel, and there are cases which, in a general way, and without careful analysis, would seem to go far toward supporting their view.
As to the question of the identification of the train which it is charged inflicted the injury upon the appellee, counsel contend that in view of the jury’s answer to an interrogatory in which it is stated that they did not know what train it was that ran upon the appellee, that it is impossible for this court to hold properly that such train was a train belonging to one of the lessees of the appellant — a fact which it was probably necessary for the jury to find before they could find a verdict against the appellant. But we do not think, on the other hand, that it would be proper to presume, in the face of the general verdict, that the train was one that had no right at all to enter the depot — in other words, that it was “a trespassing train,” as counsel want us to assume. The evidence is not
We pass then to the question of contributory negligence. If failing to wait for the train to pass a sufficient distance to enable appellee to see whether another train was approaching, was negligence on the part of appellee, it must have been so because the peculiar condition of affairs required him to wait. But we cannot say, in view of the general verdict, what all the conditions were. It must never be forgotten that we are not dealing here with a special, but a general verdict, and answers to some interrogatories. The learned counsel treat this controversy throughout as if the interrogatories and answers thereto constituted a special verdict, and the jury had not returned a general verdict at all. They even controvert the proposition, if we understand them correctly, that it was our duty to indulge in any presumptions in favor of the general verdict, a matter we shall notice more particularly hereafter. In connection with the counsel’s insistence that the appellee Avas in duty bound to wait till the Avest bound train had passed beyond
One of the material features by which the case cited must be distinguished from the case in appeal, is that in the former there was a special verdict, while in the latter there was not. As the court there very properly say: “Unless all the-facts essential to a recovery by appellant are found in the special verdict, there was no error in rendering judgment thereon in favor of appellee.” The learned counsel will hardly contend that the circumstances and conditions of the place of the injury were shown to be alike, or even similar in the two cases. In the case relied upon, the crossing was on Main street, in the city of Danville, Illinois, “the principal thoroughfare east and west through said city.” The plaintiff in that case sought to excuse himself from looking and listening in the direction from
In the case at bar, we have no such conditions as these. Indeed, it may be truthfully said that the very opposite was true, as appears even from the answers to interrogatories, without resorting to the indulgence of any presumptions on account of the general verdict. Here “the surroundings were” not “such as to admit of his looking and listening,” but it is expressly found by the answers to the interrogatories that the confusion of noises was such as to render it impossible for him to hear. Looking conld not avail him because the west bound train was in the way, although the jury found they did not know why he could not see, and that the train was not in plain sight. But they also found that the appellee did look, in both direction's, after he had started across the track. It would require an extraordinary process of reasoning to lead the ordinary mind to the conclusion that the conditions were shown to be practically similar in both cases. It must be remembered, too, that in the present case there was a large number of tracks upon all of which engines and trains were almost constantly passing, and it is impossible to lay down any rule
The next contention of the appellant’s learned counsel is introduced by them, in their brief, as follows: “The court has announced in the case in appeal that a general verdict for plaintiff raises a presumption that it was proved that the plaintiff was, at the time of injury, not guilty of contributory negligence and that the defendant, upon appeal, if he would overcome the effect of the general verdict, must make it appear that the plaintiff was guilty of contributory negligence, or the verdict will stand. If this is the law, the case of Cincinnati, etc., R. W. Co. v. Howard,, 124 Ind. 280, was not properly decided. In that case, there was a general verdict. The defendant (appellant) did not attack that verdict with evidence or facts found, showing, or even tending to show that the plaintiff was guilty of
With all respect for tbe ability and standing of tbe learned counsel, we cannot refrain from expressing our surprise at this attempt to establish an analogy between a case where tbe error relied upon is tbe overruling of a motion for a new trial, owing to tbe insufficiency of tbe evidence to sustain tbe verdict, and one in which tbe evidence is not in tbe record, and answers to. interrogatories are relied upon to overthrow tbe general verdict. We are in full accord with tbe doctrine invoked by counsel tbat one who is injured at a railroad crossing by a passing train is prima facie guilty of contributory negligence, and must adduce some testimony to establish bis freedom therefrom before be can recover damages for tbe negligence of tbe railroad company. In our original opinion we expressly stated this to be tbe rule, but said tbat this presumption no longer prevailed after tbe general verdict and its approval by tbe judgment of tbe trial court. It is as to the latter part of this proposition that appellant’s counsel take issue with us and assert tbat it is in conflict with tbe ruling of tbe Supreme
In the Howard case, it is literally true, as appellant’s counsel assert, that “the Supreme Court did not find that the verdict which had been ‘approved by the trial court,’ raised any countervailing presumption in plaintiff’s favor;” but that principle was unquestionably given its full application, notwithstanding the silence of the court upon the subject. It was not necessary for the court to declare that the points were properly raised in appellant’s brief, that the bill of exceptions was presented to the judge and filed within the proper time, duly certified by the judge, that the transcript was properly certified by the clerk, and duly filed in this court; that it was duly shown that all the evidence given in the trial court was brought into the bill of exceptions, etc., etc. The court tacitly found that all the steps necessary to overcome the presumption referred to had been taken. Having found this impliedly the court proceeded to examine the evidence in the record, and finding it insufficient, declared it to be so, and, in connection therewith, enunciated the rules which the trial court should have applied, and which, if it had applied,
To hold that there is no presumption in favor of the verdict and judgment of the trial court, on appeal to this or the Supreme Court, would be to entirely change the character of the proceedings obtaining here, as well as the character of the court itself. Unless such a presumption is indulged, the appeal is governed by the same rules as those prevailing in appeals from a justice of the peace tó the circuit court, where the case on appeal is tried do novo. There the judgment and its incidents have no presumptive force whatever, and the cause is tried the same as if no trial had ever been had and no judgment had ever been rendered. Not so, however, with appeals from the circuit to this or the Supreme Court. Ilere no causes are tried de novo. The record is brought here only for review and to determine whether the trial court committed any legal error in its rulings, and not for trial. Whatever may be the mode and nature of appeal, whether the case is brought here on reserved questions of law, or to review the evidence, the presumption of the regularity of the judgment, and every ruling behind it or incident to it, stands as a bulwark for the protection of the appellee, until overthrown by the recitals of the record to the contrary. Says Judge Elliott: “The rule that all reasonable presumptions and intendments will be made in favor of the rulings of the trial court is one of the best settled and most frequently applied rules in appellate procedure. The rule rests on a firm foundation. It is supported by the elementary principle that official acts are presumed to be rightfully performed. But when it is brought to mind that a court acts impartially, upon full information and with a calm deliberation, the foundation of
The presumption is, of course, not conclusive, and may always be rebutted. But it is “of such strength as to cast upon the party who assails the rulings of the trial court the burden of making it clearly appear that the rulings were wrong.” Id., section 710.
“It will be assumed on appeal, in eases where the record is silent, that the preliminary steps necessary to impart vitality and force to a judgment were duly taken.” Id., section 718.
And “it will be presumed,” says the same author, “that jurors have rightfully performed their duty and have returned a true verdict according to the law and the evidence. The general doctrine is declared and enforced in the many scores of cases which hold that it will be assumed that the verdict is supported by the evidence and that the jury properly decided the controversy in cases where the evidence is conflicting. * * * In short, all reasonable intendments will be made in order to support the verdict where the record contains nothing sufficient to justify its overthrow, and this doctrine is nothing more than a reasonable application of the general rule that a breach of sworn duty must be clearly shown.” Id., section 724
But if this rule is so universally applicable in cases where the evidence is in the record, and the judgment is assailed because of the insufficiency of such evidence, how much greater reason is there for giving it force where the evidence is absent and the only thing relied upon to overthrow the general verdict is the finding of the jury in answer to interrogatories submitted to them. So often has the rule been reiterated
And so we think it indisputably true, under- our practice, that the general verdict will be aided by every reasonable intendment, while the contrary is true as to the answers to interrogatories. Hence we are still of opinion that there is a presumption in favor of the correctness of the general verdict, and that there is nothing in the case of Cincinnati, etc., R. W. Co. v. Howard, supra, nor in the case of Smith v. Wabash R. R. Co., supra, with which our ruling comes in conflict. We do not for a moment question the doctrine enunciated in those cases, that the burden is upon the injured party to overcome the presumption of negligence on his part, but we say that he has overcome that presumption by the verdict of the jury, approved by the judgment of the trial court, and having done that, it now devolves upon the appellant to show by the recitals of the record that such verdict was wrong.
It is also complained that we have “misconceived the effect of the findings of the jury as to Neubacher’s knowledge that the gates were not being used.” We have not attached, and do not now attach much importance to the position of the gate pole, except that it was a circumstance which the jury had a right to consider. Counsel will agree with us, we think, that as a general rule the open gate is an invitation for parties to cross, but we did not hold in our former opinion that it would be so under all circumstances, and that the appellee need not otherwise make use of his faculties if he saw the gate open.. If he could see and hear the train, he was bound to do that, and could
It is urged, however, that we have in effect overruled or refused to follow the recent case of Oleson v. Lake Shore, etc., R. W. Co., 143 Ind. 405.
As we have not the slightest inclination to come in conflict with the rulings of the Supreme Court, and as we understand our duty to be tó follow instead of overruling its decisions, we have made a careful ex
From these facts, to which the plaintiff alone had testified, the court below concluded there was no right of action shown, the plaintiff being guilty of contributory negligence. This view was shared by the Supreme Court and the judgment affirmed.
“It is clear from the appellant’s testimony, that when he came to a stop forty feet south of the south main track the east bound train was about opposite the depot, which was two hundred and fifty feet west of the crossing. This train was about nine hundred feet long, and going east on. north main track, at about the rate of fifteen miles per hour. When the caboose of the east bound train had passed two or three rail lengths east of the crossing, appellant saw the engine of the west bound train [the train by which he was struck] one hundred feet east of the crossing. This train was going at about the rate of fourteen or fifteen miles per hour, about the same rate per hour as the east bound train. It is clear that from the time the east bound train was two hundred and fifty feet west of the crossing until it reached the crossing the west bound train on the south main track was within one-half mile of the crossing and in plain view thereof. During all this time, and until the engine draw
There is here not a word said, it will be observed, as to the duty of the injured person to wait until the train going east had passed a sufficient distance to enable him to see whether another train was then approaching from the east. The plaintiff and appellant in that case was held guilty of contributory negligence, not because he failed to wait until the obstruction of his view, caused by the east bound train was removed, but because he entered upon the track after he could have seen, and in fact had seen the train approaching from the east at a rate of speed of from ten to fifteen miles per hour, and by endeavoring to pass in front of the engine knowingly exposed himself to the danger of the collision which followed. AYe have italicized that portion of the quotation we made from the case relied upon as declaring the law differently from the way we stated it in our original opinion in this case, which we think clearly shows the ground upon which the Supreme Court base their opinion, and it does seem to us that the merest tyro in
In the case referred to, the court proceed to say that even if the smoke from the east going engine had obstructed the view east of the crossing for some distance, he knew that this was but a momentary obstruction, which the wind would presently clear away, and that he would then be enabled to have a clear view east on the south track for one-half mile. He knew that a train could and did run west on the south track, while trains were going east on the other. The railroad company had done nothing to mislead him or throw him off his guard. Under these circumstances the court declare that it was his duty to wait until he could see and hear and ascertain with reasonable certainty that it was safe to cross.
It will be observed that these facts are only assumed and the rule applied which would govern if they had been true. The actual facts showed, as we have said, that the plaintiff could have seen the train approaching half a mile away, and did see it when he entered upon the track, 100 feet distant. But even the supposed facts do not coincide with those in the
Appellant’s learned counsel also find fault with our construction of the case of Mayo v. Boston & Maine Railroad, 104 Mass. 137. Counsel say that this case was not one involving the rights and duties of a traveler upon a highway at a railroad crossing at all, and in support of this assertion state that the plaintiff had been a passenger of the defendant railroad company, “and had been discharged from its train at a point substantially upon a highway or street.” Our only purpose in citing this case, as may be plainly seen from the reading of our former opinion, was to show that it is not conclusive proof of negligence on the part of the plaintiff that he passed over the crossing at a time when his view of the track was obstructed by a passing train. Notwithstanding the fact that in the case cited the plaintiff was or had been a passenger on the defendant’s railroad, when she undertook to cross the track at the highway crossing, she was bound to exercise that “due and ordinary care” which pedestrians are required to exercise when about to pass over such a crossing. 1 The fact that one has been a passenger, and is still entitled to the protection as such, while in the act of leaving a train and a railway station, does not absolve him from the duty of exercising proper care at a crossing over which he is required to pass in his route from the train, nor is the opinion based upon any theory to the contrary.
In the case cited the court did not undertake to de
Other cases cited by us, it is insisted by counsel for appellant, do not support the views we expressed in the former opinion. We have again examined those cases, and are still of opinion that they bear the construction we have placed upon them. Nothing has been said in the very elaborate brief of appellant’s counsel which leads us to any different conclusion than the one at which we arrived in our original, opinion.
Petition overruled.