Teakle v. San Pedro, etc., R. Co

reasonable care on their part, would have disclosed to the engineer the peril of the situation in time sufficient to have avoided the fatality. The purpose of the position of the brakeman on the front of the baggage car, among others, was evidently to better observe a lookout and to apprise the operatives on the engine of any impending danger. The duty of the former was not only to observe such reasonable lookout, but to use all reasonable care and efforts to make known to the latter any situation of danger discovered by him. There likewise was a corresponding duty imposed on the operatives of the engine to maintain a reasonable lookout for the signals of the brakeman. Not to do so rendered the position of the brakeman as a watchman to a large extent useless. Whether an observance of these duties would result in averting the fatality would naturally depend in part upon the time the operatives of the train had in which to stop it, and, conversely, the time required for or distance in which the train could have been stopped, directly bear upon the question of the performance or nonperformance of those duties. The question as to the sufficiency of the evidence to show a breach of duty or negligence on the part of the brakeman, or the operatives on the engine, is not now before us. When the deceased was struck by the train and rendered helpless, the effect of his antecedent or contributory negligence was spent. Plaintiff then had the right to show if she could, a breach of duty on the part of the train operatives intervening or continuing thereafter which was the proximate cause of the death. The door should not have been closed barring her from introducing any competent and material evidence in support of it. The fact offered to be proved was not only material, but was an essential, in establishing the ultimate fact that the train operatives, in the exercise of ordinary care, could have avoided the consequences of the deceased's negligence. For, whatever omission of other duties might have been shown, if the train, in the exercise of ordinary care, could not have been stopped within such a distance as would have avoided the fatality, no liability would have been on the part of the defendant under the doctrine of last clear chance. Whether the plaintiff would have been entitled to go to the jury if the fact had been proven is likewise not before us. The questions presented to us for decision, and which we are called upon to decide are: Was the evidence competent and material? And was it erroneously excluded to plaintiff's prejudice? From the foregoing it is manifest that both questions must be answered in the affirmative.

The judgment of the court below is therefore reversed, and a new trial granted, with costs to the appellant.

MCCARTY, C. J., and FRICK, J., concur.

ST. LOUIS SOUTHWESTERN RY. Co. v. HEINTZ.

(Supreme Court of Arkansas, April 29, 1907.)
[102 S. W. Rep. 221.]

Railroads Operation-Injury to Animals on Track-EvidenceSufficiency. Evidence in an action against a railroad company, operating on tracks used jointly with another company, for the killing of a horse, considered, and held insufficient to sustain a verdict imposing the fault for the injury on defendant's train.

Same-Presumption-Res Ipsa Loquitur.*-In an action for the killing of a horse, alleged to be caused by the operation of a railroad train running by permission over the tracks of another railroad, no presumption of negligence as against the licensee railroad arises from the fact that a horse was found injured near the track.

Appeal from Circuit Court, Crittenden County; Frank Smith, Judge.

Action by L. F. Heintz against the St. Louis Southwestern Railway Company for the negligent killing of a horse. From a judgment for plaintiff, defendant appeals. Reversed.

S. H. West and J. C. Hawthorne, for appellant.
L. P. Berry and A. B. Shafer, for appellee.

MCCULLOCH, J. This is an action against the St. Louis Southwestern Railway Company to recover the value of a horse alleged to have been negligently killed by the defendant in the operation of its trains. The horse was killed by a train near Ebony, a station on the road of the St. Louis, Iron Mountain & Southern Railway Company, in Crittenden county, a few miles east of the railroad bridge which crosses the Mississippi river at Memphis, Tenn. Appellant operated one train each way per day over said road; the train going to Memphis being due at that place at 6:20 o'clock in the forenoon. It is alleged that the horse was killed by this train. This is denied by appellant, and the only question raised here is whether there is sufficient evidence to sustain the finding of the jury that the horse was killed by appellant's train.

The engineer testified positively that the horse was not killed by his train, and that he saw the horse lying near the track when his train passed that morning. An Iron Mountain train was due to reach Memphis at 6:45 a. m.; and appellant's train was late on this particular day, and did not reach Memphis until 7:05 o'clock. The witnesses introduced by plaintiff do not identify appellant's train as the one which killed the horse, and the jury were not

*See foot-notes appended to Central of Georgia Ry. Co. v. Turner (Ala.), 22 R. R. R. 661, 45 Am, & Eng. R. Cas., N. S., 661; foot-notes appended to St. Louis S. W. Ry. Co. v. Hutchison (Ark.), 21 R. R. R. 625, 44 Am. & Eng. R. Cas., N. S., 625; foot-notes appended to Mobile & O. R. Co. v. Morrow (Ky.), 21 R. R. R. 644, 44 Am. & Eng. R. Cas., N. S., 644.

St. Louis Southwestern Ry. Co. v. Heintz

warranted in inferring that the horse was killed by this train. The witness who saw the train when it struck the horse said that she thought it was the Cotton Belt train (meaning appellant's train); but, on being interrogated further, she said that her only means of identifying it was that the train did not stop at the station. Neither her testimony nor that of any other witness furnished any means of identification in that way, as it nowhere appears that the Iron Mountain train, due about the same time, stopped at the station. Another witness, who saw the horse shortly after it was injured, said that it must have been done by the Cotton Belt train, as it was too early in the morning for the Iron Mountain train; but, on cross-examination, he admitte l that he did not know when the Iron Mountain train was due.

According to proof that the Cotton Belt train was delayed on that morning, it must have passed Ebony about the time the Iron Mountain train was due. The witness did not pretend to state the precise hour when the injury occurred, but said it was about. 6 o'clock, or a little later. It is not at all improbable from their testimony that it was an Iron Mountain train which struck the horse, as both trains passed along near the same time. Appellant's engineer testified positively that his engine did not strike the horse. No presumption of negligence arises against appellent from the fact that the horse was found injured near the track, as it was not appellant's railroad. It merely operated a train over it by the permission of the company which owned and operated the road. Under the state of the testimony, the verdict is unsupported and cannot be permitted to stand. The plaintiff must, in order to recover, bring forward some proof that the horse was killed by appellant's train. He must in some way identify the Cotton Belt train as the one which struck his horse. He has not done this, and the verdict must be set aside.

Reversed, and remanded for a new trial.

25 R R R-3

SHAFER V. LEhigh Valley R. Co. OF NEW JERSEY.

(Supreme Court of New Jersey, June 17, 1907.)
[66 Atl. Rep. 1072.]

Railroads Accident at Crossing-Open Gates.*-While open gates are an invitation to cross, they do not excuse a traveler approaching a railway crossing from looking or listening, or both, where either would be effective.

(Syllabus by the Court.)

Action by Oscar W. Shafer against the Lehigh Valley Railroad Company. Verdict for plaintiff. Rule to show cause discharged, unless plaintiff remits portion of damages recovered.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

H. B. Herr and Smith & Gray, for the rule.
William C. Gebhard, opposed.

FORT, J. In this case but two questions are argued on the brief as grounds for a new trial; the first being the refusal of the court to nonsuit. We think that this refusal was right.

At the point where the plaintiff was injured there were seven tracks at grade. On either side of the roadway there were gates. Those gates were operated by a man in the tower. The plaintiff was a baker, and on the morning in question was crossing the tracks in his baker wagon, and as he approached the tracks the gates were up. Three of the tracks at the side of the railway from which the plaintiff approached were sidings. The two tracks on the opposite side of the roadway were the main tracks. Upon the sidings there were standing cars to obstruct the view of the plaintiff from the direction from which the train that hit him came. The train was going rapidly, concededly at the rate of 35 to 40 miles an hour, probably faster. There were also distracting dangers at the crossing at the time the plaintiff was going over, consisting of a drill engine switching or handling cars but a short distance away and which the plaintiff was observing. Open gates are an invitation to cross. Although they do not excuse a failure on the part of the traveler either to look or listen, yet open gates under such circumstances are clearly evidence of the negligence of the agents of the defendant company, and, whether the plaintiff exercised reasonable care and prudence, or that care and prudence which was required of him under the circumstances surrounding him, was a question for the jury. So, in any view, the court rightly refused to nonsuit.

*See foot-notes appended to Koch v. Southern Cal. Ry. Co. (Cal.), 22 R. R. R. 615, 45 Am. & Eng. R. Cas., N. S., 615; foot-notes appended to Messenger v. Pennsylvania R. Co. (Pa.), 21 R. R. R. 86, 44 Am. & Eng. R. Cas., N. S., 86; Briggs v. Boston & M. R. R. (Mass.), 19 R. R. R. 508, 42 Am. & Eng. R. Cas., N. S., 508.

Bickel v. Pennsylvania R. Co

The other ground urged for a new trial is the suggestion that the damages were excessive. The verdict was for $18,000. We think the damages were excessive. The plaintiff was seriously injured undoubtedly, but whether the serious character of the injury, which still exists, is to obtain for all the life of the plaintiff, is not clear. The earning capacity of the plaintiff was much more than capitalized by the verdict.

This disposition will be made of this case: The rule to show cause will be discharged, unless the plaintiff will consent to remit all damages recovered in excess of $10,000, and, upon the further condition that, if the plaintiff does not consent to thus remit and to this reduction, the defendant may have a new trial upon the condition that it concede liability in the case and consent to go to trial upon the question of the quantum of damages only.

BICKEL V. PENNSYLVANIA R. Co.

(Supreme Court of Pennsylvania, April 1, 1907.)

[66 Atl. Rep. 756.]

Railroads Accident at Crossing-Defenses.*—Where a traveler was injured at a crossing, it is not a conclusive answer for the railroad to say that the bell was rung or the whistle sounded, unless it appears that under the circumstances the signal was sufficient to give timely notice to travelers approaching on the highway.

Same Questions for Jury. In an action for injuries at a crossing which the person injured was approaching with restive horses, it is for the jury to determine whether the railroad company gave proper signals at a point where the driver would have heard them in time to save himself from being placed in a dangerous position.

Appeal from Court of Common Pleas, Berks County.

Action by Angeline F. Bickel against the Pennsylvania Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

Cyrus G. Derr, for appellant.
Isaac Heister, for appellee.

MESTREZAT, J. This is an action of trespass brought by the

*See foot-notes appended to Cleveland, etc., Ry. Co. v. Miles (Ind.), 11 R. R. R. 536, 34 Am. & Eng. R. Cas., N. S., 536; Reed v. Queen Anne's R. Co. (Del. Sup'r Ct.), 11 R. R. R. 332, 34 Am. & Eng. R. Cas., N. S., 332; Louisville & N. R. Co. v. Sawyer (Tenn.), 16 R. R. R. 800, 39 Am. & Eng. R. Cas., N. S., 800; foot-notes appended to Louisville & N. R. Co. v. Lucas' Adm'r (Ky.), 22 R. R. R. 739, 45 Am. & Eng. R. Cas., N. S., 739; Bamberg v. Atlantic Coast Line R. Co. (S. Car.), 22 R. R. R. 20, 45 Am. & Eng. R. Cas., N. S., 20.