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derailed and was running with one wheel on the ties on the outside of the rail-constitute an array of physical facts and set of circumstances which fully warranted the trial judge in submitting the case to the jury for their determination; and, finding as the jury did, they would not be called upon, at any point in the case entering into such finding, to draw any inferences which would necessarily be violative of the rule of law which prescribed that 'inferences must be drawn from facts proved.' Nor do we think that the verdict rendered necessarily involved any speculation and conjecture, or other than reasonable and fair inferences, in view of all the facts and circumstances proved on the trial as surrounding the killing of McAnnelly."

[12] In the case at bar we have evidence of the frog in the highway. We have evidence that a portion, at least, of the body and of the clothing of the deceased was found in that frog. We have evidence of the fact that a shoe was missing from one of the feet of the deceased. We cannot say, as a matter of law, that there was no evidence to go to the jury on the question as to whether the frog in the highway was a proximate cause of the accident.

necessity of taking such additional precautious as are essential to the safety of passers on the highway." In section 159 of the same work it is also said: "The effect of the railway's nonperformance of duty in giving notice of the approach of its trains to a grade crossing when that duty is regulated by statute depends upon the terms of the particular statute, but it may be said that in general statutory directions as to giving notice of the approach of a train to a crossing must be followed, and a failure to follow them is negligence to persons on the highway injured while crossing the line."

In Thompson's Commentaries on Negligence, §§ 7390, 7391, we find the following: "The general rule is that if there is any evidence tending fairly to show actionable negligence on the part of the defendant, or even scant and slight evidence if it is admitted mitted to the jury if it might be reasonwithout objection, the case should be subably and properly concluded that there was from the jury when a recovery can be had negligence. A case should not be withdrawn upon any view that can reasonably be taken of the facts which the evidence tends to show; and the fact that the defendant offers strong evidence showing that the plaintiff

must be mistaken in her version of the acIn the case of Gray v. Chicago, Rock Island cident will not justify the court in taking & Pac. Ry. Co., 143 Iowa, 268, 280, 121 N. W. the case from the jury. But the jury can1097, 1102, the court said: "Reasonable vigi- not be permitted arbitrarily to declare that lance to know that a public crossing is clear certain actions constitute actionable negliis a duty resting upon those operating rail-gence where there is no proper foundation way trains, and that vigilance must bear for such a finding, but there must be facts some reasonable proportion to the known to warrant the inference of negligence. Thus peculiarly dangerous character of the particular crossing which they are approaching. In this case, as we have seen, the fireman was not on guard at his window, and the engineer was in a position from which no effective view of the crossing could be had. In this manner they swept over the crossing at a very high rate of speed. While such facts do not present a case of negligence per se, they do present a situation from which a jury may fairly find actual negli

gence."

In the case of Bolinger v. St. Paul Ry. Co., 36 Minn. 418, 31 N. W. 856, 1 Am. St. Rep. 680, it was held that it was for the jury to determine whether a flagman or other precautions not used were necessary for the safety of travelers at a particular place, and how far any negligence which might rightfully be imputed to the defendant in any of the particulars mentioned was the efficient cause

of the accident.

In Patterson on Railway Accident Law, § 164, it is said: "There are some authorities for the proposition that, when the railway has followed the statutory directions as to giving signals, etc., it has discharged its whole duty in the premises; but the sounder doctrine would seem to be that compliance with such statutory regulations does

a mere surmise of negligence is not sufficient to take the case to the jury. The rule is thus expressed by Williams, J., in Toomey v. London, etc., Ry. Co., 3 C. B. (N. S.) 146, 150: 'A scintilla of evidence, or the mere surmise that there may have been negligence on the part of the defendant, would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence.' This language was approved by Bramwell, B., in Corman v. Eastern Counties Ry. Co., 4 Hurl. & N. 781, 786, and may now be considered as the settled rule in England. As has been pointed out in a former volume, however, the legal scholar on the bench should exercise great caution in substituting his own judgment for that of the 12 men on the jury, as in nearly every case the question whether certain facts tended to show negligence is peculiarly a question to be determined from the standpoint of the ordinary man."

The case of Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242, is also in point. The night was a bright, moonlight night, and the engine that struck and killed the deceased was drawing a passenger train due at 10:49 p. m. At a point 161 feet northerly of the crossing there was an unobstructed view of the track

the highway crossing, and the only question presented by the record is whether the evidence so conclusively established the contributory negligence of the intestate as to make the case an exceptional one and require the judge to decide the issue as a matter of law. There was evidence tending to establish the evidentiary facts following: The intestate was a farmer, who lived 31⁄2 miles from the station, and was familiar with the defendant's railway tracks in the vicinity of the highway crossing; that the highway ran through the village along the south side of the defendant's roadbed and tracks for about half a mile, where it turned across the railway tracks, one of which was the main and the other the passing track, which was the first track to be crossed in going west; that a person driv

seen at a point 1,400 or 1,500 feet easterly the statutory signals as the engine approached of the crossing, and at other points between that point and the crossing the train could have been seen from the highway for a distance of from 700 to 1,400 feet. The court said: "It is not contended by the appellants that there is any direct evidence showing that the deceased did not stop, look, and listen, but that the circumstances were such that the inference is irresistible that he did not so stop, look, or listen; but we are of the opinion that the court was not authorized to draw such an inference, as a matter of law, from the facts disclosed in this case. Where reasonable men might draw different conclusions from the undisputed evidence, the question of negligence or contributory negligence is one of fact for the jury, and it is only when the evidence is without material conflict and is such that all reasonable men must drawing along the highway towards the crossing, the same conclusion therefrom that the question is for the court. [The opinion then cites numerous cases and proceeds:] In the absence of evidence to the contrary, the law presumes that the deceased exercised such degree of care and caution as the circumstances and the law required, and the burden of proving that he did not rests upon the defendants throughout the case and is a question for the jury [citing numerous cases]. In the case of Railroad Company v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186, the Supreme Court of the United States held, as appears by the fourth headnote, as follows: 'Where no one personally witnessed the crossing of the track by deceased, nor his death while crossing, the presumption is that he stopped and looked and listened for approaching trains; and hence it is proper to refuse to charge that there could be no recovery if deceased, by looking and listening, could have known of the approach of the car in time to have kept off the track and prevented the accident.'"

when he got within 100 feet of the crossing, would have an unobstructed view of the southeast of the railway tracks, the direction from which the engine and cars came which killed the intestate; that there were switch lights, street lights, and the station buildings in the direction from which the engine came; that at the time of the accident it was very dark and hazy, and the wind was blowing from the south; that the engine was equipped with a very dim headlight, apparently no better than a smoky lantern; that the engineer first discovered the intestate when the engine was close to the crossing, some 25 feet therefrom; that the head brakeman, who was sitting on the fireman's side of the engine, cried out, 'Stop!' and the engineer jumped up and began to throttle the engine; he looked out of the window, and the headlight enabled him to see the crossing, and also the horses jump on the track; that when the engineer was in the act of closing the throttle the engine struck the team, and the intestate was instantly killed; and, further, that no warning that the engine was approaching the crossing was given. The evidence as to many of these facts was radically conflicting; but in determining whether the defendant was entitled to a directed verdict, that view of the evidence most favorable to the plaintiff must be accepted. The question, then, is: Does the evidence so clearly and so conclusively establish the intestate's contributory negligence that fair-minded men could not draw any other conclusion therefrom? If the accident had happened in the sunlight, but one conclusion could be fairly drawn from the evidence, namely, that the intestate must have been guilty of contributory negligence. Such, however, is not this case; and we are of the opinion, in view of the conditions under which the intestate attempted to cross the railway tracks, that In the case of Knudson v. G. N. Ry. Co., the question of his negligence was one upon 114 Minn. 244, 130 N. W. 994, the court said: which fair-minded men might well differ. "The evidence was concededly sufficient to It is not conclusive from the evidence that take the case to the jury on the issue of the the intestate did not look or listen for apdefendant's alleged negligence in not giving | proaching engines and trains as he neared

In the case of Soeder v. St. Louis, etc., Ry. Co., 100 Mo. 673, 13 S. W. 714, 18 Am. St. Rep. 724, it was shown by the plaintiff that the deceased was engaged at night in switching cars on a track where there was a rail so worn for the space of from four to six feet as to make a depression for that distance of an inch and a quarter, so that a car passing over it would be jolted or jarred, and that deceased fell from the car on which he was riding at his post of duty, striking the ground at a point consistent with the theory that he was thrown from the car by the jar in passing over the depression in the rail, and that he was dragged some distance and was killed, though nobody saw the accident. It was held that the evidence was sufficient to authorize the case to go to the jury.

those to be found in the case at bar. It is sufficient to analyze but a few of them. The same criticism will apply to practically all.

the crossing, or that, if he had done so, he must necessarily have discovered the impending danger. It may be reasonably inferred that the wind in some degree prevented him In the case of Sherlock v. Soo Ry. Co., 138 from hearing the approaching train. Nor N. W. 977, the accident took place in the does it necessarily follow that, if he had broad daylight. The evidence showed that looked, he must have seen the engine in time there was no natural physical obstruction to to have saved himself, for the dim headlight a view of the train for nearly a mile, and in in the darkness may have misled him. It addition to this the deceased was observed by at least four witnesses, and at all times when so observed had his fur collar turned up over his ears and was looking to the westward while the train approached from the east.

is not an unreasonable inference that the headlight might have appeared to him to be stationary, or one of the several lights in the direction from which the engine was coming. That the night was dark, and the headlight a delusion, instead of a warning, is indicated by the testimony of the engineer, who, it will be presumed, was vigilant as he approached the highway crossing and yet he did not see the intestate's team until he was within 25 feet of the crossing, when he saw the horses jump on the track. Again, the plainest principles of human justice forbid that it should be inferred, as a matter of law, that a man killed by the negligence of another was guilty of negligence contributing to his death, unless the undisputed evidence clearly and fully rebuts the presumption, founded on the universal and insistent instinct of self-preservation, that he exercised due care for his safety. We hold, upon a consideration of the whole evidence, that the question of the negligence of the intestate was one of fact, to be decided by the jury, and not by the judge."

We are not unmindful of the statement to be found in section 556 of Moore on Facts that: "The presumption that a traveler looked and listened before attempting to cross a railroad track does not overcome the presumption that a train approaching in plain view was seen by him. In such a case the presumption of due care would be at variance with the physical facts." We, however, have examined all of the cases cited by the author in his note to the proposition. We fail to see that any of them present a case parallel to the one at bar. In none of them was the train one which was switching backwards and forwards over a crossing, which might be seen passing but might return without warning, but a train in the proper sense of the word. So, too, in none of them, with the exception of the case of Kwiotkowski v. Chicago & G. T. Ry. Co., 70 Mich. 549, 38 N. W. 463, was there was evidence that the night was dark and stormy; in other words, that there was a wind of the velocity of from 30 to 40 miles an hour, and dust and gravel and débris flying, accompanied by a temperature of about 18 degrees below zero, and in practically all of them there was testimony of eyewitnesses which strongly negatived any idea of due care on the part of the deceased.

We have also spent much time in examining the authorities cited by counsel for appellant, but our examination has satisfied

In the case of Tyndale v. Old Colony Railroad Co., 156 Mass. 503, 31 N. E. 655, the deceased was operating a velocipede upon a railroad track and was run over by an express train which was following him. The evidence showed conclusively that the deceased did not have his lanterns lighted upon the velocipede, and this the court held was, in itself, contributory negligence. In addition to this fact was the fact that when last seen he was going at a rate of nearly as great as the train which overtook him, and if he had turned his head in any time he could have seen the approaching train in time to escape the accident. Massachusetts, too, is a state in which the burden of proving freedom from contributory negligence is upon the plaintiff.

In the case of Bressler v. Chicago Ry. Co., 74 Kan. 256, 86 Pac. 472, the evidence showed that the team moved upon the crossing in a walk; that he could have seen the train from a distance of 155 feet; that he jumped from the wagon, and if he had not done so he would have crossed in safety; and there is no evidence whatever as to the state of the weather or the time of day.

In the case of Kwiotkowski v. Chicago & G. T. Ry. Co., 70 Mich. 549, 38 N. W. 463, the evidence it is true showed that the deceased was killed on a rainy, dark night, but the evidence also showed that the locomotive had a blazing headlight which lighted up the track for at least a block; that a witness, who was going towards the engine at the time of the accident, saw the headlight plainly, and first saw the train about five blocks away; that the noise of the approaching train was heard by two men in a wood office about 20 feet from the track.

In the case of Carlson v. Chicago & N. W. Ry. Co., 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. St. Rep. 655, the evidence showed conclusively that when the deceased was 50 feet from the track a train could have been seen 2,500 feet from the crossing, and the accident happened in the daytime. There, too, was no evidence of any storm or that the weather was cold.

In the case of Conrad Grocer Co. v. Railway, 89 Mo. App. 534, the accident occurred at 6 o'clock in the evening, when it was growing dusk. A witness for the plaintiff testified

Several witnesses testified that the noise of the train was audible at this distance. The day was gloomy, but there is no evidence of wind or cold. There is no evidence that the speed of the train was excessive.

In the case of Blotz v. Lehigh Valley Ry. Co., 212 Pa. 154, 61 Atl. 832, the train could have been seen at a distance of 150 feet, 95 feet from the crossing, though it could not have been seen while passing along the 500 feet nearest to the crossing until within 15 or 20 feet of the track. There is no evidence in the case as to the time of day or as to the weather.

In the case of Connerton v. Canal Co., 169 Pa. 339, 32 Atl. 416, the accident occurred at 9 o'clock in the evening. At a distance of 50 feet from the tracks, the view was unobstructed for 1,000 feet, and the same was true at a distance of 20 or 25 feet from the tracks. The train was coming with a blaz ing headlight. There is no evidence as to the state of the weather or the time of the year. In the case of Wood v. Pa. Ry. Co., 177 Pa. 306, 35 Atl. 699, 35 L. R. A. 199, 55 Am. St. Rep. 728, the evidence showed that the train could not be seen from 150 to 200 yards distant. Plaintiff himself testified that he heard it coming, and all of his witnesses had notice of it. It was not a death case, and the court held that in any event the negligence complained of, which was a failure to give a signal, which resulted in the killing of a person on the crossing, could not be held to be the proximate result of the injury which resulted from the body of the deceased being thrown against the plaintiff, who was standing on a depot platform 50 feet away.

In the case of Tomlinson v. Chicago, Milwaukee & St. Paul Railway Co., 134 Fed. 233, 67 C. C. A. 218, the train was a regular passenger train. The view was unobstructed and the locomotive headlight could have been seen, when the train was at any point on the track within a half a mile or more of the crossing, by a traveler upon the highway at any point within 300 feet. It was 6 o'clock in the evening. There was a mist or fog, though there is no evidence that there was any wind or that it was cold. The surface of the highway at 100 feet west of the crossing was 52 feet below the track. It was dark. One of the witnesses for the plaintiff said that he heard the train and saw the headlight about four miles away, and another testified that he saw it about three miles distant.

In the case of Northern Pacific Ry. Co. v. Freeman, 174 U. S. 380. 19 Sup. Ct. 763, 43 L. Ed. 1015, the train could have been seen at 40 feet for about 300 feet. The deceased was driving in a wagon at a trot. Witnesses testified that the deceased looked straight before him without turning his head either way, and trotted directly on the crossing, and made no motion to stop until just as the engine struck him; that his head was down; and he was looking at the horses. The train

was a freight train, going at a speed not to exceed 20 miles an hour. There is no evidence as to the time of day or as to the condition of the atmosphere or temperature.

In the case of Woolf v. Washington Ry. Co., 37 Wash. 491, 79 Pac. 997, the deceased was killed by what seems to have been a solitary engine. At any point between 50 and 100 feet from the track a person could have seen along the track for a distance of 600 feet or more. At any point on the highway between 100 and 475 feet of the crossing an engine could be seen at a distance of from 475 to 600 or 800 feet from the crossing. The accident happened in the daytime. One witness testified that when the deceased was about 50 feet, more or less, from the crossing, driving at a slow walk, he looked toward the engine, and immediately whipped his horses with the lines in an effort to cross ahead of the locomotive. Another witness testified, however, that he whipped up the horses when he was just about to cross. Though there were eyewitnesses to the accident, there was no evidence of his looking at any other point or any other time prior to those just mentioned.

In the case of Dalton v. Chicago, Rock Island & Pac. Ry. Co., 114 Iowa, 257, 86 N. W. 273, a verdict had been directed for the de fendant in the court below. This was reversed because of the introduction of evidence prejudicial to the plaintiff. In it, however, the court held that, where in an action to recover for the killing of a person at a crossing plaintiff requested an instruction that, in the absence of direct evidence of decedent's conduct, the law presumes him to have been in the exercise of ordinary care until the contrary appears, which presumption should be considered in connection with the facts and circumstances disclosed by the evidence in determining whether he was in the exercise of ordinary care, there was no error of which the plaintiff could complain in the court's instructing that, in the absence of direct evidence of decedent's conduct, the law presumes that he exercised ordinary care until the contrary appears, but such presumption does not control if, from the whole evidence, it appears that decedent, in the exercise of ordinary care, could have avoided the collision by stopping, looking, and listening. In this case, however, there was evidence also tending to show that the deceased was asleep at the time of the accident.

In the case of Schmidt v. Mo. Pac. Ry. Co., 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196, the evidence of the plaintiff showed that the accident took place at 2 o'clock in the afternoon; that the plaintiff could have seen the approaching train at least some 250 feet distant; and that the plaintiff did not look when he approached the track towards the approaching train. This was the testimony of plaintiff's own witnesses. There is no evidence that it was stormy.

In the case of Crawford v. Chicago G. W.

Ry. Co., 109 Iowa, 433, 80 N. W. 519, and in | for a moment; that is, just for an instant. which jurisdiction the burden to show free- "I jerked them back, and they stopped like dom from contributory negligence was upon that, and away they went again. I was bethe plaintiff, the evidence showed that at a tween the box cars when the horses jumped. point 300 feet north of the crossing, and They took fright." There was no point after until within 150 feet of the track, a person he left the elevator at which it was possible could have seen an approaching train from for him to see the main track or the train the north at all times; that from 150 feet coming on it from the east. According to his of the track to the crossing a person could own testimony he paid no attention whatsee an approaching train for a distance of ever to the approach of the train on the main 500 or 600 feet. The train was running track. At no time did he stop his horses or southward, and the plaintiff was going along listen for the train. The noise of the mova road which was running east and west. ing train conveyed no warning to him. The When last seen plaintiff was standing facing noise of his wagon on the hard frozen ground the west. It was clear that he could have probably prevented him from hearing it. seen the train at any time from 125 to 50 feet from the track, and could have avoided the accident. There is no evidence as to the time of day or the condition of the weather. In the case of Chicago Ry. Co. v. Pounds, 82 Fed. 217, 27 C. C. A. 112, for more than 200 yards before the plaintiff reached the railroad crossing he was in plain view of the approaching train. There is evidence that about 300 yards from the station there was a cloud of dust; that it was clear that he could have seen the train during the greater part of his approach. The accident appears to have taken place in the daytime.

It will be seen that in the greater number of these cases there were eyewitnesses to the accident, and that they were not cases where there was any need for the application of the presumption of self-preservation, and in none of the cases were the facts in regard to the weather and the other physical facts similar to those in the case at bar. Where, indeed, in the case at bar is there any evidence of contributory negligence which would overcome the presumption of due care? We must remember in North Dakota that not only is there a presumption of self-protection, but also that the burden of proof of contributory In the case of Pyle v. Clark, 79 Fed. 744, negligence is upon the defendant. Outside 25 C. C. A. 190, the view of the plaintiff was of the testimony of the engineer that he unobstructed for 200 feet. He stopped his rang his bell, all the evidence of contribuhorses 15 to 25 feet from the track, sat quiet-tory negligence on the part of the deceased ly in his wagon for a minute, looked towards the train, and then, without looking again, drove slowly over the track. The accident took place at 4 o'clock in the afternoon on a clear day.

In the case of Hope v. G. N. Ry. Co., 19 N. D. 438, 122 N. W. 997, plaintiff drove over the crossing in question with a load of wood about ten minutes before the accident, so that he knew the direction and the location of the tracks. After unloading his wood he turned around and returned to the crossing, driving parallel to the tracks and south of them, not stopping once in his drive. There was a string of box cars on the center track, and other cars on the elevator track, and three elevator buildings, all of which shut out the view of the main track from him. The driver looked as he was driving down the elevator approach and did not see any train. He saw cars on the elevator track and passing track. It was cold and he was dressed warmly and had his cap down to the edge of his ears. The ground was frozen, and the double box of his wagon was empty. The wagon made a noise on the hard road, so that he did not hear the train or any noise, except that made by the wagon. From the time he left the east elevator until the accident, his team did not stop, except that after he crossed the first track he pulled up the lines and momentarily stopped, he said, because he did not want to gallop over the

That

is to be found in the testimony that: "If a
man was looking in the dark that night he
might see a man 25 or 30 feet away. There
were some lights in the yards that night.
There were lights on the depot. If a man
was looking that way he could see further.
If he was looking to the east I think he
could see a man at the depot, because the
lights would be back of him. Looking from
the east to the crossing you could probably
see a box car from 100 to 150 feet.
would depend where the light was striking
it. I said you could see a man in the dark
about 25 or 30 feet, if there were no lights
beyond them. Looking towards the east you
could see a box car in the dark about 150 or
200 feet. I had occasion to look down the
yards that night. I was there at the body
10 or 15 minutes. I could see the shadow of
the lights at the depot. I could see the out-
line of the building. I could see the outline
of a very few of the cars where they were
beyond the light limit. I could see some of
them where they were in the light limit."
Opposed to this are all of the other physical
facts which we have mentioned. The ques-
tion is: Must there be but one conclusion
from the facts proven, probative in its force
and sufficient to overcome the presumption
arising from the instinct of self-preservation?
We do not think so, and we have yet to find
any authorities which support the appellant
in his contention. This testimony does not

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