Halley et al v. Hengstler et al.

[Vol. III, N. S.

indicate the insecurity and uncertainty of speculations as to the intention of the testator, and the propriety of holding fast to the rule that the intention of the testator to use the word "heirs" in some other definite sense, must clearly appear before the court will be justified in treating it as other than a word of limitation.

or

It is true, as said by counsel for plaintiffs, if the will provided that after the death of John and Nathaniel the lands should go to certain named persons, or even if a person or class of persons were designated as "children," "grandchildren," "issue,' the like, it would carry no more than life estates to John and Nathaniel, with remainder to such persons or class, for such designations would not be words of limitation, merely determining the nature or quantum of the estate devised to the first takers, but they would be words of purchase, designating the persons or class who should take title direct from the devisor under the will. As pointed out, there is a wide difference where use is made of the general collective term "heirs," signifying all who might inherit from the first takers, ad infinitum.

We hold that by the third clause of this will John and Nathaniel took an estate in fee simple, and that the judgment of the common pleas was right, and, therefore, it is affirmed.

1904.]

Lake County.

NEGLIGENCE AT A RAILROAD CROSSING IN THE OPEN

COUNTRY.

[Circuit Court of Lake County.]

LAKE SHORE & MICHIGAN SOUTHERN RAILWAY Co. v. A. G. REYNOLDS, ADMINISTRATOR.

Decided, October Term, 1901.

Railways-Negligence at Country Road Crossings-Company Not Bound to Provide Watchman or Safety Appliance at Such a PlaceFailure of One Injured to Use His Faculties-Engineer Not Aware of His Peril-Proximate Cause of the Accident.

1. A railroad company is under no obligation to take further precautions than those prescribed by statute as to a highway crossing in the open country, where there is an unobstructed view of the tracks for a distance of six or seven hundred feet. 2. It is error, therefore, to instruct a jury that it is for them to determine whether a watchman or safety appliances should have them provided for such a crossing, particularly where what was said in regard to safety appliances was indefinite and uncertain.

3 And it is likewise error to say to the jury that it was the duty of the plaintiff in approaching the crossing to have used his faculties, "unless there was reasonable excuse for his not doing so," when there was nothing in the testimony upon which an excuse for not looking and listening could be based.

4. In such a case the railroad company is entitled to an instruction to the effect that it was the duty of the plaintiff to have used his senses of seeing and hearing before attempting to cross, and if he failed to do so, and such failure caused or contributed proximately to his injury, there can be no recovery.

5. Where one travels for forty feet before reaching the tracks, with a train approaching and in full view, and with nothing else to divert his attention, and is struck by the train, a verdict against the railroad company is not justified. C. H. & D. Ry. v. Kassen, 49 O. S., 230, distinguished; L. S. & M. S. Ry. v. Schade, 15 C. C., 424, and L. S. & M. S. Ry. v. Ehlert, 19 C. C., 177, disapproved.

COOK, J.; BURROWS, J., and LAUBIE. J., concur.

Heard on error.

Edward C. Corlett, plaintiff's intestate, was killed on the afternoon of September 15, 1897, while attempting to cross with a horse and buggy the tracks of The Lake Shore & Michigan

L. S. & M. S. Ry. Co. v. Reynolds, Adm'r. [Vol. III, N. S.

Southern Railway Company at what is known as "Casement Crossing" about a mile from Painesville, in this county. The crossing is a diagonal one and the highway for a short distance is close to the tracks but not sufficiently near to make it in that respect especially dangerous. Corlett was traveling in a southwesterly direction, the tracks running east and west at that point. The easterly view of the railway from the highway at some points as you approach the crossing is obscured for two or three thousand feet by houses, trees, undergrowth and particularly by a cut and curve; the evidence however conclusively shows that a traveler on the highway, sitting in a buggy as Corlett was at the time he was killed, has a full and unobstructed view eastward of approaching trains for a distance of six to seven hundred feet anywhere from a point forty feet on the highway to the north rail of the north track. No one was in the buggy with Corlett; his horse was not unmanageable; no other train was approaching; no one else was on the highway; the view was not obstructed westward, and he was traveling at a slow rate of speed.

With these conceded facts in the case, two objections are made to the judgment of the court of common pleas: First, That the court erred in its charge to the jury, and, second, that the verdiet is against the evidence.

The first objection made to the charge is respecting the necessity of having some appliance at the crossing for the protection of travelers upon the highway. The clause of the charge objected to is as follows:

"There is no rule of law in Ohio requiring a railway company to keep a flagman or watchman at a railroad crossing outside of a municipality and the absence of one is not of itself negligence. But it was the duty of defendant, if it should appear that this particular crossing was exceptionally dangerous, to adopt such measures as common prudence, and a reasonable and just regard for the public safety should dictate to secure to the plaintiff's decedent a reasonable degree of safety in his proper and legitimate use of the crossing. The court can not say whether or not the crossing in question did require on the part of the defendant any particular appliances to safeguard the public or require any other measures than those taken by the defendant, but it is for

you to determine from the evidence under all the circumstances of the case whether or not the defendant did take such measures at that crossing as common prudence demanded should be taken to secure the plaintiff's intestate when using said highway at the crossing in a reasonable degree of safety in his right to use the crossing, and in determining that question you have a right to take into consideration the condition of the crossing; its dangers; whether or not a flagman was stationed there; what obstructions there were, if any, to the view; whether or not signals were given, and all the facts and circumstances surrounding the crossing at the time; and if you find by a preponderance of the evidence that the defendant did not use such ordinary care in protecting the decedent at said crossing as common prudence dictated, such want of care on the part of the defendant would be a circumstance which you should consider in determining whether or not the defendant was guilty of negligence, and if you should find that it was the proximate cause of the death of plaintiff's intestate it would authorize you to return a verdict in favor of the plaintiff."

By this clause of the charge the court instructed the jury that if they should find that the crossing was an exceptionally dangerous one, then it was the duty of the company to keep a flagman at the crossing, or have some appliance to safeguard the public in the use of the crossing.

As we have stated this crossing was outside the city. The travel upon the highway was no greater than what is usual upon a country road. It was not within yard limits where there was a network of tracks, there being only the two main tracks; the railway company had done nothing to make this crossing exceptionally dangerous; it had placed no obstructions within the danger line interfering with the vision, and the trains were the ordinary through trains of the company. Under such circumstances we think the company was under no obligation to take further precautions than those prescribed by statute.

This case differs entirely from Cleveland, C., C. & I. Railway Co. v. Schneider, 45 Ohio St., 678. In that case the crossing was over a street in the city of Cincinnati; the street was in a populous part of the city and was generally traveled; there were a number of trains which were used for switching which added greatly to the danger of using the crossing. Of such character

L. S. & M. S. Ry. Co. v. Reynolds, Adm'r. [Vol. III, N. S.

also was the crossing in the case of Grand Trunk Rd. Co. v. Ives, 144 U. S., 408, referred to by counsel. We are of the opinion therefore in this case that the court erred in charging the jury that they might determine whether or not the company should have kept a watchman at the crossing or used some appliance to safeguard travelers at this crossing. Such was the holding of this court in Lake Shore & Michigan Southern Ry. Co. v. Gaffney, 9 C. C., 33, 45, a case involving this same crossing and which we are still inclined to follow.

Furthermore, the charge was very indefinite and uncertain respecting the subject of appliances. What were the appliances that should have been used to protect travelers? This question. was left entirely to the jury. Each juror was left to determine what appliance should have been used. One would think this, and another that, until the conclusion is reached, that at least some appliance should have been adopted by the company. It is a matter of legislation usually when and what appliances should be used to safeguard travelers at a crossing, and to leave to the determination of jurors what appliances should be used would be very dangerous.

The next objection to the charge of the court is to that part of it where the jury is instructed as to the duty of Corlett to use his senses before attempting to cross over the track-the court said to the jury:

"Now as to the question whether or not Edward C. Corlett was guilty of contributory negligence. You are instructed that ordinary prudence requires that a person in the full possession of his faculties of seeing and hearing when approaching a known railroad crossing use his faculties for the purpose of discovering and avoiding danger from approaching trains, and his failure. to do so without reasonable excuse therefor is negligence. It is his duty to use ordinary care under all the circumstances, and if his view was obstructed, that would increase rather than diminish the care which he should use; and as the decedent, Edward C. Corlett, when approaching said railroad crossing, was bound to use his senses, it was his duty to look and listen."

That is to say, it was the duty of Corlett to look and listen without there was a reasonable excuse for his not doing so. The