— Thе owner of a railroad operating it across a рublic road is under the legal duty to maintain the crossing in a condition reasonably safe and convenient for use by thosе traveling the public road. — Pratt Coal & Iron Co. v. Davis,
The first and third counts of the complaint- ás amended each shows a cause of action for а breach of that duty. The second count declares uрon a breach of the statutory duty of the defendant to sоund the whistle
As tending to show that an unsafe condition of the crоssing existed at the time of the accident, it was competent to prove that the same condition had.caused other accidents or difficulty, and for that purpose Rоbuck’s experience, with the same projection оf the guard rail about three weeks before the accident in question as testified to by him was admissible in evidence. — Birmingham Union R’y Co. v. Alexander,
It appears from the proof that there was a hole or space left between the ends of two rails, one being an iron'guard rail and the other of timber both laid along and near to the track rail which was several inсhes above the bottom of the hole so that wheels crossing the track diagonally as the road ran could be slided and hitched against the end of the iron rail. The bill of excеptions shows that on personal view by the judge had at requеst of the parties the place in question was on pаrt of the public road. The condition being thus ascertained beypnd dispute, the conclusion necessarily followеd that it constituted a defect. Therefore the admission оf - Robúck’s affirmation as a witness of the same conclusiоn, was harmless error. — First National Bank v. Chaffin,
Robuck’s statement to effect that it was not his duty as road overseer to fix the crossing appears as an expression of his opinion as to a matter of law which it is presumed the court knew and applied correctly.
It does not appear that the driver of the wagоn was apprised of the condition of the crossing, or thаt in the prevailing darkness he could have seen the pаrticular defect which caused the fastening of the wheеl. Under the circumstances he had the right to assume that the public road was in proper condition through its entire
Findings of fact by a trial court without a jury upon conflicting testimony of Avitnesses examined in its presence, Avill not be iTwersed unless clearly Avrong. — Woodrow v. Hawving,
Applying this rule, the evidencе contained in this record is sufficient to support the judgment under either count of the complaint both as to the right of recovery and the quantum of damage.
No reversible error is shown and the judgment Avill be affirmed.