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the condition of the track, the railroad track, on down from the cut there or embankment? A. Well, grown up with brush and weeds. Q. I mean as to being or not being straight track? A. Kind of on a curve. Q. What direction does it curve in reference to the Ohio river? A. Well, it kind of comes up on a curve this way. Q. Curves towards the river or away from the river? A. Yes, sir; curves towards the river. Q. Can you state what the greatest possible distance is that a person could have seen that train down the track approaching from the south at the time of the accident, if he had been on the crossing? A. Well, you could see it down the track, if right on the crossing, 600 or 700 feet. Q. What, if anything, was there to prevent you from seeing a train still further down the track? A. Why it goes behind a big cut there; the curve turns there, and it goes behind this cut and hides your view."

The witness, on cross-examination, among other things, testified as follows:

"Q. How many places from where you stopped there at 200 feet from the crossing were there that you could look through and see the railroad, or cars on the railroad? A. There is one place, I know. Q. Where was that? A. About 150 feet from the railroad crossing. Q. There was one place, haven't you stated, sitting down you couldn't see through? A. Yes, sir; could see through by raising up in the wagon; could see down probably two rail lengths. Q. And you didn't raise up? A. No, sir. Q. And Mr. Dernberger didn't raise up? A. No, sir. Q. And Mr. Barton didn't raise up? A. No, sir. Q. Were not you gentlemen teasing Mr. Dernberger about the little wagon, or he talking to you about that, about that time? A. No, sir. Q. What did he say about what his wagon could do? A. He was talking, when we first got in the wagon, how handy and nice it was on the place to haul in wheat and hay with; that he could drive it over rough ground and wouldn't upset. Q. Didn't he say it wasn't fit for a road wagon? A. He said it wasn't fit for the roads. Q. Don't you remember you were talking with him up until you got to the railroad track? A. No, sir. Q. What were you doing as you got there towards the track? Witness: Sir? "Mr. Ambler: What were you doing-you three men-as you got up towards the track? A. We were setting on egg cases, and I had raised up about halfway maybe before, and put my hand on the wagon bed to get off at the crossing. Q. Why? A. I always get off there to go to my home. Q. Where was your home in reference to the railroad track? A. About threequarters of a mile below Cove Run Crossing. Q. And you were going to get off at Cove Run Crossing and walk down the railroad track? A. No, sir; I walk along the public road. Q. What was the first thing that anybody said about the train as you went along up there? A. Mr. Dernberger was the first man that spoke about the train. When his horses' front feet were in the middle of the track he saw the train and said, 'My God, there is the fast train now! Q. Where were you? A. I was standing in the wagon bed. Q. Standing up? A. Yes, sir. Q. How far was the train from you then, coming from the south? A. It looked like it was within 15 or 20 feet of me. Q. What did you do? A. I immediately jumped to escape, and as I made the jump she picked up the wagon. Q. Did you notice the horses' feet, and notice where the train was when you made your jump? A. When he first spoke, the horses' front feet were in the middle of the track; but before I made the jump they had jerked the wagon onto the middle of the track. ** Q. How long, to your knowledge, had Mr. Dernberger been in the habit of going across there at that crossing? A. All his life, I reckon, so far as I know. Q. Well, how many years had you known of him being in the habit of going across there? A. The last 27 or 28 years. Q. Haven't you worked along there in years gone by yourself? A. Yes, sir. Q. Well, now, I believe you testified after you left that point about 150 feet back you didn't stop at all? A. No, sir; he checked his horses to a very slow walk, almost to a standstill. Q. And kept coming on? A. Yes, sir. * Q. Do you remember Mr. Dernberger telling you about the age of his horses? A. Yes, sir. Q. What did he say? A. Four years old. Q. And they acted like it, didn't they? A. They acted like any other horses. Q. Pretty

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lively horses? Now, how much of a space did you say there was between the line of the right of way and the rail in which you could look south, down the track? A. Why, there wasn't any you could see until within 16 feet of the track. Q. Very well. When you got within 16 feet of the track, how far could you look south? A. About 30 or 40 yards. Q. If you said feet before, do you mean yards now? Which do you mean? A. If I said feet, I mean yards. Q. Now, how many places did you say you stopped after you got in the wagon before you got on the track? A. Only one place. Q. Where was that? A. About 200 feet fronr the crossing. Q. And that was to hitch up a trace, wasn't it? A. Yes, sir. Q. Now, to get it right, where was that you could have looked through some place if you had raised up in the wagon? A. About 150 feet from the crossing.. Q. But you didn't stop there? A. No, sir. Q. Did you stop any more until the engine struck the wagon? A. No, sir."

Witness also testified as follows in regard to the statement that he had given the claim agent:

"Q. I hand this paper to you, and ask you if this paper, three pages, two sheets, with your name on it, isn't the paper you signed there? A. A page and a half is what I signed. Q. Was that name signed there signed by you? A. Yes, sir. Q. And it was signed on that paper, wasn't it? A. A page and a half I signed; yes, sir. I cannot say whether that is the paper or not. Q. I believe you do not read or write, except your name? A. No, sir; I cannot read, but I can write my own name."

An examination of the testimony of this witness shows that he testified at three different times that the deceased, just before the train came upon him, attempted to rise up and jump. After all the evidence offered by the plaintiff had been submitted to the jury, plaintiff announced that she rested her case, and defendant moved the court to direct a verdict, upon the ground that the evidence was insufficient to entitle plaintiff to a judgment. The court took the case under advisement until the next morning, when counsel for plaintiff asked permission to recall the witness Anderson and interrogate him further before the jury touching newly discovered evidence. The witness, when asked as to what the deceased was doing in regard to the team he was driving when he reached the point where a train approaching could be seen, said:

"It looked to me like he was holding them with all the strength he had to bring them to a stop."

And, when asked as to what the team did, witness said:

"Well, they just stopped about on the track, maybe was in the middle of the track and made a lunge at the time it seen the train and jerked the wagon upon the track."

On cross-examination witness was asked if he had not theretofore testified that he could not make out whether the deceased was trying to rush his horses or draw them back, and said:

"Why, he made an attempt to hit the horses or check them, or raised to jump from the wagon; I couldn't say."

Witness was further interrogated as to whether he had not already testified that, when deceased got up, he (witness) thought it was with the intention of making a jump. In response to this question witness said:

"I said 'in my opinion.' I didn't know which he intended to do.”

While it was obviously the purpose of the plaintiff to show by this witness, when recalled, that the horses became unmanageable and the deceased did everything in his power to keep them from going upon the track, the mere reading of witness' testimony as to this point is sufficient to show that no such inference could be drawn therefrom. Further, this testimony is highly inconsistent with the statements made by witness when he was first on the witness stand. Indeed, his own admission shows that he was not willing to testify affirmatively to the state of facts sought to be established.

As we have already stated, the defendant by leave of the court introduced two witnesses out of order. At that time counsel no doubt felt that the case might go to the jury; but when they decided to request the court to direct a verdict the testimony of these two witnesses was excluded, or rather not considered; the court saying, among other things:

"And the court further certifies that, in determining the motion to direct a verdict, the evidence of these two witnesses was totally disregarded by it." Therefore the court below, in disposing of the defendant's motion, based its judgment upon the uncontradicted evidence offered by the plaintiff.

The daughter of the deceased was introduced as a witness, and among other things testified that the train which killed her father was 10 minutes late. This evidence at most was conjectural; she not having a time-table with which to verify her opinion in regard to the matter. In view of the peculiar circumstances surrounding this case, we fail to see how evidence of this character could be material in determining the question at issue. The deceased, in attempting to go upon the crossing, evidently knew about the "Fast Line," and he also must have known as a matter of common knowledge that railroads operate special trains, and that frequently trains are not run on time. New York, P. & N. R. Co. v. Kellam's Adm'r, 83 Va. 851, 3 S. E. 703.

A number of other witnesses were introduced, most of whom testified as to the condition of the approach to the crossing; others, that no signal was given by the defendant; and some as to the amount of damages which plaintiff would be entitled to recover, in the event the court should hold that she had established a good cause of action. The real question presented to this court is as to whether, under all the circumstances, the deceased exercised ordinary care from the time he left the point 150 feet distant from the crossing until he first saw the train approaching.

[5] While Anderson, as we have said, testified that deceased "looked and listened" at a point 150 feet from the crossing, no other inference can be drawn from his testimony than that after leaving this point he drove slowly, going at about the rate of 2 miles an hour, and that after he came to within 16 feet of the track, where witness said he could have seen 30 or 40 yards south of the crossing if he had looked, deceased drove his team onto the crossing, apparently oblivious to the fact that he might encounter the train in so doing. If he had only looked or listened, or even hesitated, when he came within 16 feet of the track, he could have saved his life and that of the other unfortunate

man who was riding with him. Bearing upon this point the court below, in referring to the facts, said:

"Anderson testified that they were driving at a rapid rate until they reached 150 feet of the track, when they did not stop, but slowed down to a speed of 2 miles per hour. It was proved beyond all doubt that the view of the track was obstructed. Anderson stated that, at a point about 16 feet before reaching it, the track could be seen for a distance of 30 or 40 rods; he subsequently corrected this statement and said for a distance of 30 or 40 yards. Young testified that from that point-16 feet before the team reached it--the track could be seen 360 feet. Recalling the fact that 5,280 feet constitute a mile, 10,560 feet 2 miles, it is mathematically sure that Dernberger, driving at a speed of 2 miles per hour, would go 176 feet a minute, or 214/15 feet per second. He therefore drove this 16 feet from where he could see the track in a little over 5 seconds; had he stopped the noise of his wagon at that point for these few seconds, so as to be able to look and listen effectively, he would have saved his life. Nay, more, admitting that the train was running 45 miles an hour, it was then covering 237,600 feet an hour, 3,860 feet a minute, 66 feet a second. If Dernberger had stopped at the point 16 feet before reaching the crossing, where he could see the track for a distance of 150 to 200 feet according to Anderson, 360 feet according to Young, for two seconds, the train would have beat him to the crossing. Such mathematical demonstrations must startle us into a realization of how necessary it was for Dernberger to have obeyed the legal obligation to stop, look, and listen."

[6] Among other things, it was shown that the defendant failed to give a signal in approaching the crossing, either by ringing the bell or blowing the whistle, and, as we have stated, the plaintiff insists that the failure of the defendant to give the signal as required by the statutes of West Virginia was the proximate cause of the injury of plaintiff's intestate. In other words, that if the defendant had given this warning the accident would not have happened. The Supreme Court of the United States in the case of Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542, in discussing this question passed upon this point; the first syllabus in that case being in the following language:

"The neglect of the engineer of a locomotive of a railroad train to sound its whistle or ring its bell on nearing a street crossing does not relieve a traveler on the street from the necessity of taking ordinary precautions for his safety. Before attempting to cross the railroad track, he is bound to use his sensesto listen and to look-in order to avoid any possible accident from an approaching train. If he omits to use them, and walks thoughtlessly upon the track, or if, using them, he sees the train coming, and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain. If one chooses in such a position to take risks, he must suffer the consequences. They cannot be visited upon the railroad company."

In the case of R. A. Abernathy, Administrator, v. Southern Railway Company, 164 N. C. 91, 80 S. E. 421, and in Cork Treadwell, Administrator of Henderson Treadwell, deceased, v. The Atlantic Coast Line Railroad Company, 169 N. C. 694, 86 S. E. 617, the case of Railroad Company v. Houston, supra, is cited with approval.

In the case of Neininger v. Cowan, supra, 101 Fed. 787, 42 C. C. A. 20, this court in passing upon the case, the facts of which are somewhat analogous to the case at bar, speaking through Judge Simonton, said:

"There can be no doubt, from the testimony presented at the trial, that the defendants were guilty of negligence. The train approached a crossing of two

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important streets in the city, and gave no notice whatever of its coming. The witnesses heard no bell, and no whistle was sounded. No gates had been erected at the crossing, and no person was stationed at that place to give notice of a moving train. The defendants had neglected to observe the regulations prescribed both by an act of the Legislature and by the ordinances of the city. So it must be assumed that at the time of the accident, and as one cause of the accident, there was negligence on the part of the defendants. But this does not decide the case. The question in such cases' as this at bar 'is (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or (2) whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that, but for such negligence or want of care and caution on his part, the misfortune would not have happened.' Railroad Co. v. Jones, 95 U. S. 442, 24 L. Ed. 507; Railway Co. v. Ives, 144 U. S. 424, 12 Sup. Ct. 679, 36 L. Ed. 485."

Judge Simonton in referring to the case of Missouri Pacific R. Co. v. Moseley, 57 Fed. 922, 6 C. C. A. 642, also said:

"It goes without saying that injury from engines or cars can be and ought to be foreseen or anticipated as the probable result of walking across or on a railroad track without looking both ways and listening for approaching engines. This is demonstrated by the fact that so universal is the experience that it has become a settled rule of law that such action is negligence. Railway v. Moseley, supra; Elliott v. Railway, 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068. The negligence of the servants of a railroad company in not sounding a whistle or ringing a bell does not excuse a person for not exercising ordinary care in crossing a track. Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542."

Also the case of Wright v. Southern Railroad Co., 155 N. C. 325, 71 S. E. 306, extends the doctrine almost beyond the rule announced by the Supreme Court of the United States. In that case the plaintiff, who testified in his own behalf, said that:

"On September 6, 1909, he was going toward Canton, and had just passed a little branch, and a freight train hove in sight coming from Canton; that he drove on, his mare in a slow trot, kind of cantering along; he did not see anything to stop for, as the train had just passed. He thought everything was clear, and when he got to the railroad crossing, Hall, the man in the buggy with him, said, 'There is another train coming up there,' and plaintiff said, 'It is that train down there,' and Hall jumped out of the buggy right at the track and said, 'Whip up your mare, or you will be caught,' and plaintiff turned his head and looked up the track, and the train was about 40 or 60 feet from him, coming backwards down the track, and he struck his mare, and the smoke and steam coming out scared the mare, and she threw him against the sign post and injured him."

The Supreme Court of North Carolina in that case, among other things, said:

"But we must recognize the principle, firmly established, that the judge must decide, as a matter of law, the preliminary question whether there is any legal evidence to be submitted to the jury."

After stating that caution should be observed, and the construction of the evidence most favorable to the plaintiff adopted, the court said: "Considering the evidence in this light, we must sustain the ruling of the judge, as it appears clear to us that the plaintiff was guilty of contributory negligence on his own evidence."

Indeed, this rule is so well settled that we do not deem it necessary to prolong the discussion on this point, further than to say that the cases

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