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Cooper v. Charleston & W. C. Ry. Co

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whether brought at common law or under the statute, was there any evidence tending to show that any negligent act of the defendant was the approximate cause of the injury.' the case of Jenson v. Ry. Co. (Wis.) 57 N. W. 359, 22 L. R. A. 680, the court, in discussing a crossing similar to that described in the complaint, uses the following language: "Such crossings are to be encouraged, in order to secure the safety and security of the public, as crossings at grade are always dangerous. All the statutory regulations and. liabilities on the subject of railroad crossings apply only to such as are constructed at even grade with the highways. Common reason teaches that this crossing is very different from the common railroad crossing at the grade of the highway, not only in fact, but in all its incidents and relations to the traveling public. There is no danger at such a crossing of any collision of railroad trains or cars with man, beast, or vehicle on the highway. It cannot be the direct cause of any physical injury to any person or thing on the highway. The train passing over this bridge can cause no injury to persons or property on the highway, other than or different from their injury while passing on a highway parallel to the railroad. The only possible injury a railroad train can inflict on persons or property in the highway is by frightening horses while drawing vehicles or being ridden, and causing them to run away and do damage, as in this case. Only horses unused to such a place would be frightened, and only horses hard to hold or not well subdued would run away or get beyond the control of the driver, so that it is not common that any injury would happen even from this cause. It is certainly no wrong for the train to be run over such bridges in the usual and ordinary way, and even in this way some horses going under the bridge or being near it at the same time might be frightened by it. The trains must necessarily make considerable noise going over the bridge. They cannot be run without it. It is not by any means certain that a train would make less noise going over slowly than faster. What degree of noise must it make to frightened horses? A horse liable to be frightened would be by the train passing over the bridge at any rate of speed. There are too many contingencies, conditions, and uncertainties about it to make it a rule of law that a high rate of speed would be the proximate cause of an injury caused by horse running away through fright from the noise of the train. To be a rule of law, the injury from such a cause must not only be proximate, but usual or common, and to be expected or that could be anticipated. The danger from such bridges of frightening horses is no greater in fact and no more common than from the railroad running near and parallel to a highway. It would seem to be no more reasonable to establish a rate of speed for the trains in passing such places in one case than in the other.

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As to ringing the bell and blowing the

Green v. Los Angeles Terminal Ry. Co

whistle, they are only required, if at all, in order to avoid frightening horses, and with that view to warn the traveler on the highway to stop. Where should he stop, and how near the bridge? If near the bridge, and his horse is liable to be frightened and run away, he will be in a much more dangerous condition than if he should drive on and take his chances, for the horse, facing the train rushing over the bridge, would turn suddenly around to escape danger, and upset the carriage. I am not sure but that the company might make itself liable by blowing the whistle and ringing the bell so near such a bridge crossing as to frighten teams passing under it on the highway." We have quoted at length from the foregoing case for the reason that its reasoning is conclusive of the question under consideration.

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The respondent's second additional ground is not properly before the court for consideration, as it was not made one of the grounds of the motion for nonsuit. The first and third additional grounds are sustained, and this is sufficient to support the order of nonsuit.

It is the judgment of this court that the order of the circuit court be affirmed.

POPE, C. J., concurs in the result.

GREEN v. LOS ANGELES TERMINAL RY. Co.
(Supreme Court of California, July 8, 1902.)
[69 Pac. Rep. 694.]

Accident at Crossing-Failure to Stop and Look Again.*

Deceased, when within 30 feet of the railroad, stopped, looked up the track, and found it clear for a space of 800 feet. She then, without again stopping or looking up or down the track, proceeded to cross, and was struck by a train running between 25 and 30 miles an hour: held, that deceased was not guilty of contributory negligence as a matter of law.

Contributory Negligence-Finding-When Disturbed.

In an action against a railroad for an accident causing death, a finding that there was no contributory negligence on the part of deceased will not be set aside unless such negligence affirmatively appears as a conclusion of law from the undisputed facts.

Commissioners' decision. Department 1. Department 1. Appeal from superior court, Los Angeles county; M. T. Allen, Judge. Action by Joseph Green against the Los Angeles Terminal Railway Company for damages for the death of his wife. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Gibbon, Thomas & Halsted and Goodrich & McCutchen, for appellant.

R. A. Ling and Edwin A. Meserve, for respondent.

SMITH, C. This is a suit brought by the plaintiff to recover damages for the death of his wife, alleged to have been *See foot-note appended to Louisville & N. R. Co. v. Cooper (Ky.), 1 R. R. R. 230, 24 Âm. & Eng. R. Cas., N. S., 230.

Green v. Los Angeles Terminal Ry. Co

the result of the negligent operation of the defendant's railroad. The plaintiff recovered judgment for the sum of $5,000 and costs; and the appeal is from the judgment, and from an order denying the defendant's motion for new trial.

It is found by the court that at the time of the accident the defendant's train "was being run and operated in a very dangerous and grossly negligent and careless manner, as to its rate of speed and failure to sound ordinary signals of warning," and that the accident to the deceased was the result of the negligence of the defendant and its employees; "that before crossing or attempting to cross the defendant's railroad track [the deceased] used ordinary care, and did what an ordinarily prudent person would have done under the circumstances'; and that she "did not by her own carelessness or negligence in any way contribute to said accident." But it is claimed by the appellant, in effect, that these are inconsistent with the more specific findings, and that upon the latter the conclusions of the court and the judgment should have been different. The case, as presented by the specific findings, is as follows: The defendant's railroad runs easterly along Humboldt street, in Los Angeles city, crossing at right angles Avenues 21 to 26, inclusive, and from the last crossing leaving the street by a sharp curve to the northward. Humboldt street, between Avenues 22 and 23, is crossed at an angle of 30 degrees by "a wide, hard-beaten path, regularly traveled by pedestrians,' which runs from a point on Avenue 23 south of Humboldt street, northwesterly, across vacant lots, to Avenue 22, in the vicinity of the house where the plaintiff and deceased lived. The distance along the path from its intersection with the south line of Humboldt street to its intersection with the railroad track is about 30 feet; and from the former point, looking easterly, one can see the track to the curve at Avenue 25, a distance of about 800 feet, but not beyond. The deceased was killed at the intersection of the path above described with the railroad in the afternoon of November 15, 1899, while it was still light, by a train coming from the east. She was then passing along the path to her home; and when she came to Humboldt street, and had entered thereon, "she looked up defendant's track in the direction from which the train. was coming," and "there was [then] no train on the defendant's track in sight from where she was." The deceased then, without again stopping or looking up or down the track, proceeded to cross the street and railroad, following the path, and as she stepped upon the track was struck by the engine of defendant's train coming from the east, and fatally hurt. The train at the time of the accident was running down grade, without using steam, and making but little noise, -"at an excessively high and dangerous rate of speed" (between 25 and 30 miles per hour). No whistle was blown on the engine from the time it passed a point beyond the curve, out of sight of the deceased, until within 10 or 15 feet of her, and just as the engine was about to strike her; nor was the

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Green v. Los Angeles Terminal Ry. Co

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bell rung before or while crossing any of the streets until just above where the accident occurred. As the train rounded the curve "the engineer in charge of the engine [the deceased], and knew that she was walking on said path, and crossing said Humboldt street, ahead of said train, and that she gave no evidence of knowledge of the approach of said train," and, "notwithstanding said facts, did not slacken or lessen the speed of said train, or attempt to give [deceased] warning of its approach, until the train was within 10 or 15 feet of the point of the accident,' though it is found he could have stopped the train within 200 feet after starting to do so.

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The above facts are not disputed by the appellant's counsel, except as to the rate of speed, the failure of the engineer to sound the signals required of him, and his failure to slacken speed until within 10 or 15 feet of the deceased. But on the last point the engineer's own testimony is explicit to the same effect as stated in the finding, and as to the others it is admitted that the evidence is conflicting. The facts found must therefore be taken as established. We do not understand that this is disputed by the appellant; but the point made is that the deceased, after stopping at the south line of the street and looking up the track for an approaching train, should have again looked and listened for the approaching train, and that, as a matter of law, her failure to do so in itself constituted negligence. But it is difficult to imagine on what principle this contention could be sustained, or, if it could, how it could be material. On the question of contributory negligence the burden of proof is on the defendant; and here there was absolutely no evidence of such negligence, except that she did not look up the track for an approaching train in passing from the south line of the street to the track. Certainly we cannot say that the inference of negligence from these facts is irresistible, or, as a matter of law, that they constituted negligence; and, unless this can be said, the contention must fail. For, to set aside the finding of the court that there was no contributory negligence on the part of the plaintiff, "such negligence must affirmatively appear as a conclusion of law from the undisputed facts." Schneider v. Railway Co., 134 Cal. 482, 487, . 66 Pac. 734 et seq. Indeed, in this case the evidence tended to show that the deceased took all the care to avoid danger required of her. When she looked up the track and found it clear for the space of 800 feet, she was near enough to cross with safety, had the train been running at any but an excessive rate of speed.

I advise that the judgment and order appealed from be affirmed.

We concur: CHIPMAN, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

HOUSTON & S. Ry. Cɔ. v. KANSAS CITY, S. & G. Ry. Co. (Supreme Court of Louisiana, Feb. 2, 1903.)

[33 So. Rep. 609.]

Right of One Company to Cross Track of Another.

A reasonable and practicable crossing will not be denied if it be in the interest of the public that it be granted.

Same Statutes.

Although there is no statute regulating the expropriation of a crossing of one railroad by another, the general statute upon the subject will afford the right to obtain crossing when the business of the road and of the public are in need of a new depot.

Same.

Rights of way are acquired subordinate to the public's right to other roads. The test is necessity and public interest. The right of the road at the place selected will not be more materially impaired than it would be if another place for the crossing be selected. Crossings-Interlocking Devices.*

Safeguards and protection at crossings are highly important. They should be general, and not limited to one crossing. The right to require interlocking devices and other safety appliances is left open for consideration in proceedings, if instituted to that end. Crossings-Necessity.

The jury of the vicinage are peculiarly competent to judge of the necessity of allowing one railroad to cross the line of another at a particular place, and to assess the amount to be paid therefor. Unless their finding is manifestly erroneous, it will not be disturbed. (Syllabus by the Court.)

Appeal from judicial district court, parish of Caddo; Alfred Dillingham Land, judge.

Action by the Houston & Shreveport Railway Company against the Kansas City, Shreveport & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Alexander & Wilkinson, for appellant.

William Henry Wise and Edward Beverly Herndon, for appellee.

BREAUX, J.

Plaintiff sued for a judgment expropriating a crossing for its road over defendant's road.

Its new depot and platform are on Southern avenue in the city of Shreveport.

They were built because thought more convenient to the public, and needed by the increasing transportation business of plaintiff. The old depot building was not adequate to the business. Its location was inconvenient. The necessity for change and improvement in depot accommodation is sustained by the testimony.

In order to reach this new depot it is necessary to cross the two legs or prongs of defendant's wye in that city. Defendant bought its right of way at this particular place from plaintiff.

*See, as to whether railroads may be compelled to furnish interlocking devices, Minneapolis, etc., R. Co. v. Cedar Rapids, etc., Ry. Co. (Iowa), 23 Am. & Eng. R. Cas., N. S., 152, and foot-note.

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