38 F. 15 | U.S. Circuit Court for the District of Northern Ohio | 1889
charged the jury, among other things:
1. That it was the duty of the defendant", having placed across the street near its crossing a gate under .the care of its flagman, as a reasonable, precaution- for the safety of persons passing over its track at the crossing, to close down the gate at times when its oars, trains, or engine were passing over the street crossing, and along its track, in order to make it reasonably safe for persons so passing. That it was the duty of defendant when about" 'to' pass over the street track to give such reasonable and proper
2. The gate being open, the car-driver had the right to suppose the track was clear, and was safe to cross, and was guilty of no carelessness in passing through the gate towards the crossing without stopping at the gate to look or listen for a passing engine.
3. It was not carelessness in the driver of the street-car, after passing the open gate, and immediately before crossing the track, tp stop and look and listen for approaching engine, or to ascertain whether there was danger in proceeding across, if in so doing he exercised ordinary prudence or care in attempting to cross the track and avoid injury. That if, in so stopping and listening and looking, he discovered the engine approaching at a dangerous speed, or in close proximity to the crossing, it was, in the face of such danger, negligence on the part of the driver to attempt to cross the track.
4. That the plaintiff at the time was only a passenger in the car. He had, nor could have had, no control in the management of the car, — of of its stopping or going on; and not in a situation to himself look out for, or prevent, danger in crossing the railroad track. I direct you, therefore, that if the evidence shows no fault of omission or commission in the conduct of the plaintiff or negligence on his part contributing to his injury, the negligence of the driver, if guilty of any negligence, cannot be imputed to the plaintiff so as to prevent his recovery in this case, if it is shown that the defendant was guilty of negligence which produced the injury, or directly contributed thereto.
5. That, if the injury to the plaintiff was occasioned solely by the carelessness of the driver of the street-car, the defendant cannot he held liable for the injury thus produced.
6. That the ordinances of the city of Youngstown regulating the speed of trains passing through the city, or the blowing of the whistle on engines, are only police regulations, and do not have the effect of changing the general law upon the same subject, or change the duties or rights of the parties growing out of the failure to do, or doing, what the ordinance commands or prohibits.
7. That the assessment of damages to the plaintiff, if the jury find for the plaintiff, was under the control of the jury. That there were certain elements to be taken into account in such assessment, such as reasonable compensation, so far as it is susceptible of an estimate in money for loss and damage caused to him by the defendant’s negligence, including not only expenses incurred for medical attendance and nursing, and a reasonable sum for his pain and suffering, but also a fair compensation for the loss of what he would otherwise have earned' in his profession or business, and' has been deprived of earning by any permanent disability shown to have been suscained by the wrongful act of the defendant. That if the plaintiff, before the injury complained of, was already suffering under permanent disability, then the defendant would be liable only'
Yerdict for the plaintiff for $7,250.
