Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. train by looking to have avoided the accident by ordinary prudence; of this I will speak hereafter. The train did not stop at the depot. The proof is that trains usually stopped there, but that they sometimes passed without stopping. This fact could only avail the plaintiff upon the theory that he heard the whistle announcing the approach of the train, and, supposing that it would stop at the depot, did not look to see whether it did so or not. If such was the fact, the plaintiff was plainly negligent for these reasons: First. He could not reasonably assume that the train would certainly stop at the depot, since that was not the invariable rule. Second. Being warned that a train was approaching and thus put upon his guard, there were the most cogent reasons for looking out, and it was heedlessness to neglect to do so. A more difficult question is presented by the fact, which I assume as true, that no warning by ringing the bell or blowing the whistle was given of the approach of the train to the crossing. Counsel for plaintiff insists that the neglect of the engineer to sound the whistle or ring the bell on nearing the crossing relieved the plaintiff from the necessity of looking for the coming train before attempting to cross, and he has cited some authorities to sustain this view. If this were an open question in the federal courts, I should feel bound to consider it very carefully, as it is certainly one of importance both to the railroad companies and the public. But in my judgment the question is settled adversely to the plaintiff by the decisions of the supreme court of the United States, by which I am of course bound. In the case of the Continental Improvement Company v. Stead, 95 U. S. 161, the supreme court say: "On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentive to caution, for their lives are in imminent danger, if a collision happens; and hence it will not be presumed without evidence that they do not exercise proper Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them; such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case they cannot obtain reparation for their injuries even though the railroad company be in fault. They are the authors of their own misfortunes." In the case of the Railroad Company v. Houston, 95 U. S., 697, this precise question was considered. It is true that in that case the person killed was crossing the track a short distance away from the public crossing, but the court distinctly say that, aside from this fact, "the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from taking ordinary precautions for her safety." And the court further say that "negligence of the company's employees in these particulars ❞— that is, in regard to the sounding of the whistle or the ringing of the bell" was no excuse for negligence on her part.. She was bound to listen and to look before attempting to crossthe railroad track in order to avoid an approaching train, and not to walk carelessly into a place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted to use them and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. using them she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant." If Upon the authority of these cases I am bound to hold that the failure of the engineer to give the customary signals of the approach of the train did not relieve the plaintiff from the duty of looking back at least as far as the depot before VOL. II-18 Schofield v. The Chicago, Milwaukee & St. Paul R. R. Co. going upon the track. This brings me to the only remaining question in the case. Was the velocity of the train so great that if the plaintiff had used ordinary care and caution he would have been unable to prevent the accident? Ordinary prudence required the plaintiff to look for a coming train before proceeding so near the track as to be unable to prevent a collision. If one drives his horse so near the track as to be in danger from a passing train, he cannot excuse himself upon the ground that he was unable, after looking, to escape unhurt. He must look out in time to avoid a train if one is approaching, provided always that there is a clear view, so that he is not deprived of the means of looking. But it is said that he could not see the approaching train beyond the depot unless he looked at a distance of thirty-two feet from the crossing. This is true, but the distance to the depot was seventy rods, and even if the train was moving at the extraordinary speed of fifty miles an hour, it must have passed the depot when the plaintiff was at least one hundred feet from the crossing. While a train running at fifty miles an hour is traveling seventy rods, a horse, even if walking, would travel at least one hundred feet. It is highly improbable either that the train was moving at that speed or that the horse, on a severely cold day, would move at a slow pace. But giving the plaintiff the benefit of every doubt, it remains manifestly true that the plaintiff, when within one hundred feet of the crossing, might have seen the train coming from the depot, and might have avoided the accident by stopping until it passed by. It is of the utmost importance that the rules of law governing this question of negligence on the part of the employees of railroads, as well as on the part of the traveling public, should be thoroughly understood and rigidly enforced. Railroads are being rapidly constructed in every direction; they necessarily intersect the common highways at numerous points. The rules of law to which I have referred, requiring equal care and caution on the part of those who run railroad trains and those who travel the highways, if obeyed, will prevent acci Peters v. The Lincoln & N. W. R. R. Co. dents. We must hold all parties to its strict observance. Because this, in my judgment, is a case in which these rules were disregarded by the plaintiff, I am constrained to hold that he cannot recover, and therefore sustain the pending motion. I am the better satisfied with this ruling, because the case would, I presume, in any event go to the supreme court, and upon the record thus made up the plaintiff can take exceptions and have the questions upon which he relies fully and fairly presented to that tribunal. PETERS V. THE LINCOLN & N. W. R. R. Co. et al. (District of Nebraska. May, 1881.) 1. RAILROAD COMPANY-LEASE OF ROAD-ASSENT OF STOCKHOLDERS STATUTE CONSTRUED.-Section 94, chapter 2, General Statutes of Nebraska, which authorizes any railroad company in that state to lease its road, provided no such lease shall be perfected until a meeting of the stockholders shall have been called, "and the holders of at least two-thirds of the stock of such company, represented at such meeting either in person or by proxy, voting thereat, shall have assented thereto," construed as mandatory, and as avoiding a lease executed without the assent of the stockholders in meeting assembled. 2. SAME NECESSITY FOR MEETING OF STOCKHOLDERS.-The meeting, and the vote at such meeting, of the stockholders cannot be dispensed with on the ground that the assent of the stockholders has been expressed in some other mode. The meeting, and discussion and deliberation in such meeting, are of the essence of the act required by the statute. This is a bill in equity, brought to enforce a contract alleged to have been entered into between the Lincoln & Northwestern Railroad Company and the Atchison & Nebraska Railroad Company, whereby the latter company agreed to lease the railroad belonging to the former. The controlling question in the case arises upon the construction of section 94, chapter 2, General Statutes of Nebraska, title "Corporations," pages 190 and 191, which section is as follows: Peters v. The Lincoln & N. W. R. R. Co. "Section 94. Any railroad company heretofore or hereafter incorporated may, at any time, by means of subscription to the capital stock of any other company, or otherwise, aid such company in the construction of its railroad, for the purpose of forming a connection of said last mentioned road with the road owned by the company furnishing such aid, or any railroad existing in pursuance of law may lease or purchase any part or all of any railroad constructed by any other company, if said company's lines of said road are continuous and connected as aforesaid, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies whose lines are so connected, may enter into an arrangement for their common benefit consistent with, and calculated to promote, the objects for which they were created: Provided, that no such aid shall be furnished, nor any purchase, lease or arrangement perfected, until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in manner as they shall designate, and the holders of at least two-thirds of the stock of such company, represented at such meeting either in person or by proxy, and voting thereat, shall have assented thereto." This section is part of a general law in Nebraska under which both of said railroad companies were organized. Respondents demur to the bill upon the ground that it does not aver that the alleged contract of lease was assented to by the stockholders of the respective corporations by vote in stockholders' meeting. E. Wakeley, for complainants. T. M. Marquett, for respondents. MCCRARY, Circuit Judge.— The bill does not allege that the agreement to lease was assented to by the stockholders of either of the companies, in stockholders' meeting assembled, as required by the statute; but it is insisted that it does show |