Gambar halaman

301, 4 C. C. A. 346; Chicago, M. & St. P. Ry. Co. v. Bennett, 181 Fed. 799, 104 C. C. A. 309; Shatto v. Erie R. Co., 121 Fed. 678, 59 C. C. A. 1; Northern Pac. Ry. Co. v. Alderson et ux., 199 Fed. 735, 118 C. C. A. 173; Southern Ry. Co. v. Carroll, 138 Fed. 639, 71 C. C. A. 83; Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542. Counsel also cite numerous other cases. The plaintiff's intestate relies upon the cases of Continental Improvement Company v. Stead, 95 U. S. 161, 24 L. Ed. 403; Grand Trunk Railway Company v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U. S. 597, 32 Sup. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. (N. S.) 154; Baltimore & Ohio Railroad Company v. Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274; Lehigh Valley R. Co. v. Kilmer, 231 Fed. 628, 145 C. C. A. 514; Morrissey v. Boston & L. R. R. Co., 216 Mass. 5, 102 N. E. 924; City of Elkins v. Western Maryland Co., 86 S. E. 762; and numerous other cases.

[4] The danger incident to a crossing is increased or diminished according to the nature of the land on either side of the road over which one must travel to reach the same. Where the banks are level, and the intervening space between the road and the railroad consists of cleared land, the risk is less; but where, as in this instance, it appears that there is a heavy growth of weeds, underbrush, etc., so as to obscure the view of the track beyond the crossing in the direction from whence the train comes, the risk is correspondingly increased. Such condition is a warning to the traveler of the imminence of danger, and in the nature of an admonition to exercise reasonable caution in approaching a railroad track; also, the means of transportation employed by the traveler becomes an important factor in determining the degree of diligence to be exercised. These are questions that are important, and must be considered by the court in a case like the one at bar, in determining whether the negligence of the deceased was the proximate cause of his injury..

In this instance the deceased, a farmer, had lived in the vicinity of the crossing where the accident occurred for many years, and it is but fair to assume that he was familiar with the location of the track at the point of crossing, and was also familiar with the approach thereto. Under these circumstances, he must have been fully cognizant of the risks incident to crossing at this point, and, as a matter of common knowledge, he must have known that the railroad company oper-. , ated over its tracks heavy freight trains incapable of being promptly stopped, and his expression at the fatal moment, “My God, there is the Fast Line!” shows that he appreciated the fact that passenger trains of a high rate of speed were passing to and fro during the day. This expression, which is the last one that the deceased ever made, also shows that he understood that in crossing the track a fast train might be expected at or about that time, and that he had made a fatal mistake in going upon the track without first looking and listening. Plaintiff introduced a number of witnesses, but before she rested her case defendant's counsel introduced two witnesses. At the conclusion of the evidence the defendant moved the court to direct a verdict in its favor, and in response thereto the court below granted the motion.

The deceased came to his death on the afternoon of July 27, 1915, between 4 and 5 o'clock, at a point about 15 miles below Parkersburg, at a country crossing where the dirt road crosses the Ohio Division of the defendant. The railroad station is situated about one-half mile north of the crossing, which is known as the Cove Run Crossing. The railroad runs nearly north and south and somewhat parallel with the river. The highway from Bellville runs south between the railroad and the river. When within about 200 feet of the railroad, it turns sharply to the east and crosses it. The train by which Dernberger was killed was coming from the south, and was due to pass this crossing at about 4:20 p. m., and was known as the “Fast Line Express.”

On the afternoon of the accident the deceased had gone to the depot to meet his daughter and a young lady, who had arrived that afternoon to pay her a visit. For some reason the young ladies preferred not to go in the wagon, but took a short cut, intending to get in the wagon after it had passed the crossing. They walked down the track where the accident occurred at a slow gait, consuming about 20 minutes, expecting to meet the deceased. It appears that they were listening “for the train,” knowing that it was about time for "another train.” Not finding the deceased, they started along the highway and had gone but a short distance east of the crossing when the accident happened.

The deceased, after leaving Bellville, and while proceeding towards the crossing, passed his son-in-law, Mike R. Buffington, on the road, who was also driving a team. The wagon in which deceased was riding was of a peculiar type; the wheels, hubs, etc., being of iron. The wheels were 36 inches in diameter. The bottom of the bed, which rested on the axles, was 19 or 20 inches from the ground. The teanı consisted of a pair of "right sprightly horses,” about four years old, “which acted like any other horses.” The top of the wagon bed was 37 inches, coming to the top of the wheels. Buffington, whose wagon was heavily loaded (his horses being “scary” and afraid of the trains), dropped back and let the deceased pass. Buffington says that when about 345 or 350 yards from the crossing his attention was called to the train, and that he knew that it was after time for the train to come, and that it had not come up.

After passing Buffington the deceased was joined by George Anderson and Charles Barton, who got into the wagon for the purpose of riding a part of the way to their respective homes; it being the intention of Anderson to get off at the crossing. Anderson had been employed by the railroad company for seven years, and had worked "right along that crossing." Barton had also worked for the company. Anderson stated that after he got in the wagon deceased said that it (the wagon) was not fit for the public highway on account of being so low, but that it was handy in hauling hay and wheat in; that it could be driven over rough ground without being upset, and that it was not fit for the roads. He said that “we talked about hauling in hay and wheat, and how nice the wagon was on the place”; that when the wagon reached a point about 200 feet from the track a trace became unhooked, and the deceased got out and hooked it up, and then got in the wagon and started again, the horses going in a prance or trot for about 50 feet; that within about 150 feet of the track, where the upgrade commenced, the horses were checked down to a low walk; and that just before reaching the crossing the horses were traveling not over 2 miles an hour. Witness also testified that when about 150 feet from the crossing the deceased "looked and listened, but did not see any train or hear any," and he checked the horses and looked for the train; that the south side of the road was all grown up with weeds, apple trees, horse weeds, elms, etc., there being horse weeds at this point 12 or 14 feet high. The witness, in referring to what they did at this point, said that they "pulled to the right," but that the railroad could not be seen on account of the growth of weeds, brush, and trees, and that there was a cornfield there on the right of way which hid their view.

Traveling in the direction of the crossing in which the parties were going at the time, there was a curve in the highway where it turned from north and south to west and east. The witnesses vary as to the location, width, and opportunity to see by the opening at this point, which is but natural, where parties rely upon recollection, without having made actual measurements. However, they all agree that a train on the track could be seen through this opening, but in order for a person riding in a wagon to see through the same it would be necessary for him to "raise up”; that this would be especially true where one was riding in a wagon the height of the one used by deceased. Anderson testified that it was a narrow space about 150 feet from the crossing, and that by rising up in the wagon one could see two rail lengths of the railroad, or cars on it at a distance of about 11 rods down the track. Thomas Anderson, another witness, locates the opening at the same point, or a little farther from the track. He says that the top of an engine could be seen probably 400 or 500 feet down the track. Charles Anderson, another.witness, said that it was a "little open space” just below the curve in the road, and that through this opening a little of the track could be seen. Buffington also testified that the open space was 3 or 4 feet wide, 30 or 40 yards from the crossing, and through which you could see a train coming from the south, and that the track above the whistling board could be seen from this point. However, he also testified that probably a train could be seen 1,000 feet from the crossing above the whistling board.

Alexander Bosco, a farmer and practical surveyor, said that he measured the distance of the open space on the curve of the road; that it was about 30 or 35 yards from the track; that the nearest end of the opening was 30 yards, and the other end 5 yards farther, which would make the opening 5 yards wide. This witness also testified that the opening was probably 8 or 10 feet wide at the point from which one could see the whistling post, and that probably one-half of the whole length of a train could be seen in nearing the post. Witness Young said that the open space was about 120 feet from the river rail, and that you could see a train about two-thirds of the distance between two telegraph poles, but that you could not see it down to the curve in the track, which was shut off by the embankment. Witness Smith said that the opening was 9 or 10 feet wide just at the point where the grale started, and that a train could be seen coming on the track from

that point. Witness Sheets also testified that at 150 feet from the crossing there was an opening of 20 or 30 feet in width, and that one could see a train traveling between the crossing and the whistling post while passing over 30 or 40 feet of the track.

It is but fair to assume that, if the deceased had "raised up" in his wagon at this particular point, he could have seen a considerable portion of the track, and, not having done so, we think his conduct in this respect is a circumstance which the court very properly considered as tending to show that he did not exercise the care and caution a traveler should, in view of the peculiar conditions surrounding the approach to this crossing. After leaving the point referred to as being 150 feet from the crossing, the deceased traveled at a rate of about 2 miles an hour until he reached the crossing, and continued so to travel, according to the evidence, until the horses' feet were in or near the center of the track, when the deceased exclaimed, “My God, there comes the Fast Line!”

The defendant introduced a signed statement given by Anderson to the claim agent, the day after the accident occurred, in which, among other things, he said:

"He (referring to the deceased) never spoke of the train, or apparently made no effort to see if a train was coming."

However, the witness at the trial, in referring to what transpired just before the accident, among other things said:

"Q After you and Mr. Barton got into this wagon, what did you do then? A. We sat down on an egg case and was talking about his wagon. He said it wasn't fit for the public highway on account of being so low, but was the nicest and handiest thing he ever had on the farm to haul in bay and wheat on. Q. What direction did you go after you got into the wagon? A. Well, we went south. Q. How high was that wagon, if you know-the bor—from the ground? A. Well, it was about 37 inches. Q. How was Jr. Dernberger sitting? A. He was sitting on an egg case pretty well front of the wagon. Q. Where were you in reference to the front of the wagon? A. Setting about 21 feet from the back end on an egg case; Mr. Dernberger and Jr. Barton setting side by side. Q. What, if anything, did you and Jr. Dernberger do between the time you got upon this wagon and the time of the accident? A. Well, we talked about hauling in hay and wheat-how nice the wagon was on the place. Q. Now, go on and tell in reference to looking or not looking for the train. A. We got within about 200 feet of the track when the trace became unhooked, and he stopped and hooked up that trace and then picked up the lines. Q. What, if anything, did you do in reference to looking for the approach of the train?

“Jr. Ambler: Objected to."

Counsel for plaintiff insist that the witness Anderson, among other things, testified that when within 16 feet of the track deceased looked and listened. A careful analysis of the evidence fails to sustain this contention. Anderson was the only witness who testified as to what happened just before and at the time the accident occurred. His testimony bearing on this point is as follows:

"Q. What else did he do at that point? A. Well, we started along and about 150 feet of the track started upgrade.

"Court: About 200 feet of the track you say the traces became unfastened? A. Yes sir; and about 130 feet of the track startel up a little grade to the crossing, and he checked his horses to a slow waik, and looked and listened. but didn't see any train or hear any.

"Court: That was 150 feet, where you went upgrade? A. Yes, sir. "Court: And he checked his horses? A. Yes, sir "Court: Checked his horses and went at slow speed ? A. Yes, sir. "Court: Did or did he not stop at that place? A. No, sir; he did not stop.

"Mr. Bills: What, if anything, else did Mr. Dernberger do at or near the crossing? A. Well, that's all he done until we came up on the crossing, and when the horses' front feet came up in the middle of the track, he says, My God, there is the Fast Line!' and when he said that I looked, and it looked to me like it was within 15 or 20 feet of us, and I made a jump backwards, and he made an attempt to raise off the egg case, and my opinion is made an attempt to jump to the right. Q. At what speed was Mr. Dernberger driving his team just before he came to the crossing? A. Very slow. I don't know how slow, but the horses almost stopped when he checked them and looked and listened for the train. Q. What, if anything, did he do in the way of looking for the train? A. Well, we pulled to the right and tried to look down, but couldn't see down the road on account of brush, weeds, and stuff growing up-couldn't see down from the road to the railroad track."

From this testimony it appears that the point at which deceased turned to the right and looked and listened for the train was 150 feet distant from the crossing. It is true that, in response to the question as to what deceased did just before he came to the crossing, witness said, “The horses almost stopped when he checked them and looked and listened for the train ;” but in response to the next question witness explains by saying, “We turned to the right and tried to look down, but couldn't see down the road on account of weeds, brush, and stuff growing up-couldn't see down from the road to the railroad track.” In response to the second question preceding this question, wherein the witness was asked, “What, if anything, else did Mr. Dernberger do at or near the crossing?" witness said, "Well, that's all he done until we came up on the crossing and when the horses' front feet were in the middle of the track.” Witness could not have intended to convey the idea that when they got within 16 feet of the crossing deceased could not see down the road to the railroad track. Therefore we think the proper interpretation to be placed upon this testimony is that they could not see down the road to the railroad track on account of brush, weeds, etc., which obstructed the view at the point about 150 feet from the crossing.

The uncontradicted evidence shows that no signals were given at or near the whistling board. In describing just what happened as the train was in a very short distance of the parties, witness testified as follows:

"Q. What happened after Mr. Dernberger drove upon the crossing? A. Why, he said, there is the fast train, and made an attempt to jump out of the wagon, and the train struck the wagon as he made the attempt to rise off of the egg case. * * * Q. How far could you see down the track at the time of this accident, when you were 16 or 18 feet from the track? A. Well, Fou could see probably 30 or 40 feet. Q. What, if anything, prevented you from seeing further than that? A. Why, there was brush and weeds grown up on the right of way. Q. As you approached near to the crossing from this point 16 or 18 feet back, what was the condition down the track as to seeing or not seeing? A. There was an embankment down there, between 12 and 13 feet high, grown up with brush and weeds that hid your view all of the way from that down the track. Q. Can you state to the court and jury the distance that embankment is or was at that time down the track from the crossing? A. Well, I never measured it, but I judge it is 200 feet. Q. What is

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