Cavanaugh v. Boston & M. R. R

had been asleep by the wayside within shouting distance of his donkey. The plaintiff's inability to control the situation is the test, and it is immaterial whether he is not in actual charge of the subject of injury because the absence of his body shows he could not have been, or the fact be proved by showing that for other cause he, himself, was not, in control. Whether, under

such circumstances, the defendant upon the information he has ought to have known of the plaintiff's condition, that he was drunk, asleep, nonjudging, or not observing, bears on the defendant's negligence. If it cannot be found he ought to have known the plaintiff's condition, he is not liable; if he ought, he may be. "The law no more holds one responsible for an unavoidable, or justifies an avoidable injury to the person of one who carelessly exposes himself to danger, than to his property similarly situated in his absence. The law deals with the behavior of the parties in the situation in which it finds them, regardless of how that situation was produced. If the two parties approach the point of collision asleep or inattentive, and neither wakes up or becomes alive to the situation, the concurrent negligence of both prevents a recovery from either; but if one wakes up, or becomes aware of the danger existing from the fact that another asleep or inattentive is thoughtlessly in danger of injury by him, his fault, if he can but does not avert the injury from such danger, is alone the cause of the subsequent injury. There is no difference between sailing the seas with a rudderless ship and traversing the highway with a rudderless mind. One knowing the situation, who can by care avert a collision and does not, is chargeable for the resulting loss, despite the uncontrolled character of the other's progress." Nashua, etc., Co. v. Railroad, 62 N. H. 159.

The injury in this case arose because the defendants with their train and the deceased with her team both attempted to occupy at the same time a portion of a public highway which each had the right to use, but which neither had the right to occupy when it was in use by the other. Each was bound to such acts as would constitute care under the circumstances, to prevent an attempt at such joint occupation. While ordinarily due care would require that the wagon should wait and allow the train to go by, the failure to exercise such care and the negligent occupation of the crossing by the wagon gave the train no right to attempt to pass at the same time. State v. Railroad, 52 N. H. 528, 556; Huntress v. Railroad, 66 N. H. 185, 34 Atl. 154, 49 Am. St. Rep. 600; Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Little v. Railroad, 72 N. H. 502, 503, 57 Atl. 920; Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. Whether the use of the crossing at the time by the traveler was careful or negligent, the train could not lawfully use it while it was in use as a part of the highway. Having notice that the traveler was

Morgan v. Iowa Cent. Ry. Co

about to use it at a time when they could have refrained from entering upon it, they are as much in the wrong and as fully the sole authors of the resulting injury as the traveler would be who attempted to pass with knowledge that it was in use by the train.

The situation is simply this: Both parties were proposing to exercise a common right which could not be enjoyed by both at the same time; the defendants knew of the deceased's proposed use; the deceased did not know the defendants' purpose. If the deceased was in fault for not knowing the defendants' desire then to pass over the crossing, the defendants were in fault for attempting to cross while the path was in use. As the deceased's negligent occupation of the crossing did not increase the defendants' right to use it, they cannot recover of her for injury from their wrongful attempt, but must pay the damage done to her by their wrongful act. As her negligent act gave them no right to cross, it is immaterial in her suit for the injury whether her act of which they had notice was negligent or careful.

Exceptions overruled.

WALKER and YOUNG, JJ., concur.

MORGAN V. IOWA CENT. RY. Co.

(Supreme Court of Iowa, May 3, 1911.)

[130 N. W. Rep. 1058.]

Evidence-Weight-Positive or Negative Testimony.*-The_testimony of a witness, approaching a railroad crossing, that he looked and listened for a train from a point 20 rods from the crossing until he was close to it, that he did not hear a bell or whistle, that he listened for such signals, and could have heard both, had they been given, is positive testimony that the signals were not given, and is entitled to as much weight as the testimony of a witness who, in the same position, testifies that he heard the signals.

Railroads Accidents at Crossings-Proximate Cause—Question for Jury. In an action for the death of horses struck by a train at a crossing, the issue of the proximate cause of the injury held, under the evidence, for the jury.

Negligence.—

Railroads Collisions at Crossings-Contributory Whether a driver of horses killed by a train at a crossing, was guilty

*See foot-note of Anspach v. Philadelphia, etc., Ry. Co. (Pa.), 35 R. R. R. 91, 58 Am. & Eng. R. Cas.. N. S., 91; third headnote of Slattery v. New York, etc., R. Co. (Mass.), 34 R. R. R. 795, 57 Am. & Eng. R. Cas., N. S., 795; foot-note of Louisville & N. R. Co. v. O'Nan (Ky.), 34 R. R. R. 528, 57 Am. & Eng. R. Cas., N. S., 528.

Morgan v. Iowa Cent. Ry. Co

of negligence in the manner he approached the crossing, and in his attempt to control the horses after they became frightened, held, under the evidence, for the jury.

Appeal from District Court, Hardin County; C. G. Lee, Judge.

Suit to recover the value of property destroyed by collision with one of defendant's trains. Verdict and judgment for the plaintiff. The defendant appeals. Affirmed.

W. H. Bremer and J. H. Scales (George Seevers, of counsel), for appellant.

Chas L. Hays, for appellee.

SHERWIN, C. J. One of the defendant's trains killed a pair of horses and destroyed other property belonging to the plaintiff at a highway crossing. The plaintiff alleged negligence because of a failure to give the statutory signals and negligence in operating the train at an excessive and dangerous rate of speed, considering the location of the crossing. The crossing in question is at the north end of a cut and on a slight curve in the defendant's road to the east. The plaintiff, with his team, was going east on the highway, and when a short distance from the crossing the team became frightened at a train coming from the south, broke away from the plaintiff, and were killed by collision with the train on the crossing.

[1] The appellant contends that there was no evidence from which the jury could find that the whistle was not blown and the bell rung for this crossing, as required by law; but in this the appellant is clearly mistaken. The plaintiff and a witness who was approaching the crossing immediately ahead of him testified that they looked and listened for a train from a point 20 rods west of the crossing until they were close to it, and that they did not hear a bell or whistle. They were both where they could have heard both the whistle and the bell, had they been sounded, and both were listening for such signals. Their testimony was not, therefore, merely negative. It was in the nature of positive testimony, because, if the witnesses were where they could not fail to hear, if giving the matter attention, and they were in fact looking out for and listening for the signals which they know should be given, their testimony would be entitled to as much weight as that of a witness who in the same position heard the signals. Mackerall v. Railway Co., 111 Iowa, 547, 82 N. W. 975; Stanley v. Railway Co., 119 Iowa, 526, 93 N. W. 489; Selensky v. Railway Co., 120 Iowa, 113, 94 N. W. 272; Hoffard v. Railway Co., 138 Iowa, 543, 110 N. W. 446, 16 L. R. A. (N. S.) 797.

[2] It is further said that there is no evidence that the failure to give the signals was the cause of the plaintiff's loss. We think

Morgan v. Iowa Cent. Ry. Co

otherwise, however. The plaintiff testified that his team was afraid of the cars and of the smoke emitted by engines, and that he was looking out for the train as he went toward the crossing. He was driving, walking behind his wagon, and when the horses saw the smoke of the train rolling up over the bank of the cut close to them they became frightened and broke away. Had the plaintiff been advised of the coming of the train by the proper signals, it is fair to presume that he would have stopped his team in a safe place and had it under better control. Under the facts presented, we think the question of proximate cause was for the jury. Ward v. Railway Co., 97 Iowa, 50, 65 N. W. 999.

[3] As we have already said, the plaintiff testified that he looked and listened for the approach of this train. The conformation of the land between the highway and the railroad south of the crossing was such that a train could not be seen between the point where the horses became frightened and a point several rods father west; hence the plaintiff must necessarily rely on the statutory signals. We think the question of his negligence, both in this respect and in respect to his attempt to control his horses after they became frightened, was for the jury. Although the appellant does not mention the matter in its brief of points, it argues that the issue of excessive speed should not have been submitted to the jury, and that the court erred in instructing on the subject of the defendant's negligence aside from the failure to give the statutory signals We do not propose to notice these matters further than to say that, while the plaintiff's pleading is not as clear as it might be made, we still think it fairly admits the construction given it by the trial court.

We find no error in the record, and the judgment must therefore be affirmed.

LOUISVILLE & N. R. Co. v. WILKINS' GUARDIAN.

(Court of Appeals of Kentucky, May 10, 1911.)

[136 S. W. Rep. 1023.]

Damages.-The

spinal

Damages-Personal Injuries-Excessive cord of a 31⁄2 year old boy was injured by the person carrying him upon alighting from a passenger train falling at the platform, resulting in a curvature of the spine and inability to control his kidneys and bowels. The boy cried continuously for two weeks after the injury, and repeatedly placed his hand on the back of his head, is slow of speech and thought, and has not developed since the injury as an ordinarily healthy child should, being unable to climb steps and walk without difficulty. Held, that a verdict of $5,000 given in an action for such injuries was not excessive.

Appeal and Error-Verdict-Damages-Conflicting Evidence.—An assessment of damages for personal injuries by the jury on conflicting evidence will not be disturbed.

Damages Personal Injuries-Instructions.-Where, in an action against a railroad company for personal injuries to a child in alighting, defendant claimed that the boy was born with a club foot, had never been able to walk, talk, or handle himself physically like other children, an instruction was proper denying recovery for injuries or suffering not resulting from the accident.

Damages Instructions—Cause of Injuries.—An instruction in an action for personal injuries in alighting from defendant's train that if "the injuries, if any he has received for which the plaintiff sues in this action, were not caused while being carried from" defendant's car, "by reason of the unsafe condition of its platform but were sustained in some other way, or resulted from some other cause or from natural infirmity," the jury should find for defendant, was subject to criticism as not excluding in terms damages resulting from some other cause than defendant's negligence, if the jury found that there were also damages resulting from such negligence.

Appeal and Error-Instructions Given for Appellant-Scope of Requests. Appellant cannot complain of error in an instruction given upon its motion on the ground that the trial court did not further instruct on the same subject, even if it might properly have done so.

Appeal and Error-Review-Presentation Below-Motion for New Trial.-Alleged improper argument by appellant's counsel cannot be considered on appeal where it was not assigned as a ground for a new trial.

Negligence-Imputed Negligence-Negligence of Parent.*-Con*See first foot-note of Feldman v. Detroit United Ry. (Mich.), 37 R. R. R. 685, 60 Am. & Eng. R. Cas., N. S., 685; third foot-note of Berry v. St. Louis, etc., R. Co. (Mo.), 33 R. R. R. 243, 56 Am. & Eng. R. Cas., N. S., 243.