SAME NO EX NY'S NEGLI whether a train was in dangerous proximity; and if he neglected to do this, but ventured blindly upon the track, it must NEGLIGENCE OF be at his own risk; and your verdict in such case would DECEASED have to be for the defendant. The failure of the CUSE FOR COMPA engineer to sound the whistle or ring the bell, if such GENCE. were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for his own safety. Negligence on the party of the company's employees, in those particulars, was no excuse for negligence on his part. And, on the other hand, if Manheimer was negligent, that was no excuse for the company for its negligence, if it were negligent.' The counsel for the defendant claim error in the giving of the last clause above quoted. They say in their brief: "This, though true as an abstract proposition, yet, given in the connection it was, its direct tendency was to mislead the jury." I do not think it could have misled the jury. The court had repeated many times that it was the duty of Manheimer to look and listen for the trains, and to take every ordinary precaution to escape a collision, and here says-as had been said in the charge once or twice before-that a failure to ring the bell or blow the whistle, or any other negligence upon the part of the defendant, would not authorize a recovery on the part of the plaintiff if the deceased had failed to perform his duty in taking the precautions required of him by the law. It cannot be considered, in the face of this instruction so many times clearly given and stated, that the jury were led to believe, by the remark complained of, that, if the defendant was found to have been negligent, the plaintiff could recover, notwithstanding the negligence of his intestate. The remark really had no place in the charge and might have been well and better omitted, but I cannot see how it could have occasioned any harm before a jury of any intelligence. It is also claimed that the court erred in instructing the jury that, if the train was late, and Manheimer did not know it, and no train was due on schedule time, he was not required to TRAIN BEING BE TY TO LOOK AND use but slight care comparatively, in looking out for EFFECT OF the approach of a train. Upon the argument I was in- HIND TIME-DU. clined to think that the charge in this respect was mis- LISTEN. leading, and might have led the jury, perhaps, to understand that Manheimer was excused from taking the usual and ordinary precautions of looking and listening to ascertain that the track was clear before attempting to cross, which is the duty at all times of persons approaching a railroad crossing. But on a careful examination, I find that the circuit judge stated clearly enough to the jury, at least a dozen times, that if Manheimer did not look and listen for an approaching train before crossing the track he could not recover, because of his own negligence; and also " that, if there was no train due at the time, and none in hearing, or coming from either way, still it would be his duty to look and listen as he approached the track, because a railroad crossing is always considered to be a place more or less dangerous. The charge complained of in this respect may be summed up in the following extract: "But the degree of care and prudence which he would be required and expected to exercise under such circumstanees when no train was due, and none was coming, would be comparatively slight. And so it might be if the train were some hours behind or off time, and was actually coming, but of the coming of which he did not know." The whole effect of this reference to the amount of care under such circumstances would seem to be that Manheimer was required, in any event and under all circumstances, to look and listen for an approaching train; but he was not bound to look and listen as carefully as he would have been had a train been due, and the time of its coming been known to him. This is good law. The precaution that Manheimer was bound by the law to take was the care that an ordinarily prudent man would have exercised under like circumstances. The ordinarily prudent man looks and listens before he crosses a railroad track, but he does not look or watch as closely when he has reason to believe that no regular train is due or coming, as he does when he knows that one may be expected at once at the crossing. I think the jury must have understood it in this sense. If so, no error was committed. I have been unable to find any hurtful error in the proceedings. The judgment of the court below should be affirmed, with costs. The other Justices concurred. See Durbin v. Oregon R. & Nav. Co., and note, post. Negligence of Railroad Company in Obstructing View of Tracks by Leaving Cars Standing near Crossing. It may be negligence on the part of a railroad company to leave empty cars on a side track in such a position that they obscure the view of a crossing. Kissenger v. New York Cent., etc., R. Co., 56 N. Y. 538; or to obstruct a public crossing with a train and then fail to exercise greater care toward those forced to use a private crossing in passing around the train. Brown v. Hannibal, etc., R. Co., 50 Mo. 461. Duty of Railroad Company to Post Flagman at Crossing.-See Bolinger v. St. Paul, etc., R. Co., 29 Am. & Eng. R. R. Cas. 408; note to Donohue v. St. Louis, etc., R. Co., 28 Ib. 681; Berry v. Pennsylvania, etc., R. Co., 26 Ib. 396; Long Island R. Co. v. Greany, 24 Ib. 473; Peck v. Michigan Cent. R. Co., and note, 19 Ib. 257. Duty of Railroad Company as to Speed in Approaching Crossing.-See Kelly . St. Paul R. Co., 6 Am. & Eng. R. R. Cas. 93; note to Philadelphia, etc., R. Co. v. Troutman, 6 Ib. 124; Indianapolis, etc., R. Co. v. McLin, 8 Ib. 237; note to Cleveland, etc., R. Co. v. Nowell, 8 Ib. 381; Goodwin v. Chicago, etc., R. Co., 11 Ib. 460; Kelly v. Hannibal, etc., R. Co., 13 Ib. 638; note to Johnson v. Louisville, etc., R. Co., 13 Ib. 626; Western, etc., R. Co. v. King, 19 Ib. 255; Reading, etc., R. Co. v. Ritchie, 19 Ib. 267; Howard v. St. Paul, etc., R. Co., and note, 19 Ib. 283-284; Bolinger v. St. Paul, etc., R. Co., 29 Ib. 408; note to Wakelin v. Louisville, etc., R. Co., 29 Ib. 439. NORFOLK AND WESTERN R. Co. v. BURGE. (Advance Case, Virginia. November 17, 1887.) The track of the defendant railway ran on a city street, and from it a side track led to a wharf, through a gate which was surrounded by high fences, and on the east side by lofty buildings, which effectually prevented persons coming from the wharf from seeing approaching trains. Defendant kept no watchman at the gate. At the time of the accident a train was being backed up to the wharf, without any signals being given, and plaintiff was driving out when some one called to him; he looked back, whereupon he was struck by the train and injured. Held: 1. That a refusal by the trial court to give at plaintiff's request an instruction that if by looking around or by watchfulness, plaintiff could have discovered the approach of the cars, or if he could have avoided them and did not, he could not recover, was not error, such an instruction being vague, indefinite, and misleading, in that it made no attempt to define the degree of care plaintiff should have exercised. 2. That it was plaintiff's duty to look and listen for approaching trains with such care as an ordinarily prudent man would use, and, if he failed to do so, he could not recover, unless the defendant when it saw him, or should have seen, failed to use proper means to avoid the accident. 3. That if the place of the accident was so situated that a person driving out could not see an approaching train, then the fact that plaintiff did not look in front of him is not contributory negligence. 4. That if ordinary care required the defendant to take any other precautions than those it did take, the plaintiff could recover, unless he knew the train was approaching, or did not act as an ordinarily careful man would. 5. That a charge that the degree of care required of a railroad company is that used by a good specialist in the same business, was an abstract proposition which shed no light on the case, and was properly refused. 6. That a railroad company operating its trains on city streets must use greater care than in less frequented localities, and any neglect of any precautions proper in the peculiar circumstances of the locality constitutes negligence. 7. That if pushing a train increased the risk of plaintiff, it was negligence on the part of the defendant not to give timely notice of what it was doing. 8. That it was properly left to the jury to find whether the defendant had performed or omitted any act which, in the exercise of ordinary care, it was its duty to perform. The injuries which plaintiff received by being run into by defendant's train were the loss of his truck, the amputation of two toes, and a permanent injury to his leg, which made it necessary for him to have an assistant in his business. Held, that a verdict of $2000 damages was not excessive. ERROR to the corporation court of the city of Norfolk. Defendant was pushing its train when it struck plaintiff's truck, demolishing it, and plaintiff's foot and leg were caught in the wreck, causing injuries which resulted in the amputation of two of his toes, and injuries to his leg of a permanent and painful character, thereby incapacitating him for work to such an extent as to render it necessary for him to employ an additional hand to do the lifting, when he subsequently undertook to carry on his vocation as a truckman. Sharp & Hughes and Wm. J. Robertson for plaintiff in error. George McIntosh and Tunstall & Thom for defendant in error. RICHARDSON, J.-This was an action of trespass on the case in the corporation court of the city of Norfolk, wherein August Burge, FACTS. the defendant in error here was plaintiff, and the plaintiff in error was defendant. The declaration alleges that the plaintiff was a truckman, and that on the twentieth of June, 1885, while he was driving his truck from the wharf of the Old Dominion Steamship Co., in said city, the truck was struck with such force and violence by a train of the defendant company, which was being backed or pushed into the said wharf, as that the truck was demolished, and the plaintiff himself was seriously injured. The object of the action was to recover damages for these injuries, which, it is alleged, were caused by the negligence of the defendant. The evidence shows that the defendant has a truck running down Water street, in said city, and that a short distance above or east of the gate, leading from the wharf of the Old Dominion Steamship Co. into the said street, is a switch at which a track branches off from the main track, and runs through the gate above mentioned into the said wharf. The accident in question occurred while the plaintiff was attempting to pass through this gate, which is the only means of ingress and egress for trucks and other vehicles to and from the said wharf. The evidence also shows that the railroad track on Water street is entirely hid from the view of any one inside the gate, on the wharf, owing to high buildings on the east side, fronting on the said street, and a high, close fence on either side of the gate; so that a person about to drive from the wharf into the street cannot see a train on the track above or east of the gate; nor does the accustomed ringing of a bell, when trains are moving on the street above the gate, indicate to a person on the wharf whether the train, the bell of which is being rung,. is moving on the main track, or on the track leading through the gate into the wharf, before it comes in view at the gate. The evidence also shows that, prior to the accident, the defendant company sometimes stationed a watchman at the gate to warn persons of the approach of trains when going into the wharf,-such a precaution being regarded as necessary to avoid accidents; and it does not appear that a watchman was there stationed when the accident in question occurred. In point of fact, the evidence shows the contrary. It also shows that, as the plaintiff started to drive from the wharf, his attention was attracted by some one calling to him from behind; that he turned his head in the direction from which the voice came, and, as he was driving through the gate, the train, backing to pass in at the gate, suddenly came upon the plaintiff, colliding with his truck before it cleared the gate, and injuring the plaintiff as above stated. This statement of the evidence is sufficient for a correct understanding of the questions which have been raised, respecting the action of the lower court in giving certain instructions to the jury, and in refusing to give certain other in structions INSTRUCTIONS NEGLIGENCE. After the evidence had been introduced, the defendant moved the court to instruct the jury as follows: "Although the jury may believe from the evidence that the defendant, or its employees, gave no signal of the approach of CONTRIBUTORY its cars, either by ringing bells or by calling out, or otherwise, yet if the plaintiff could, by looking around, or by watchfulness on his own part, in approaching the railroad track, have discovered the approach of the defendant's cars, or if, after seeing the same, he could have avoided them by turning aside, backing, remaining standing, or otherwise, and did not, he was guilty of such contributory negligence as bars his recovery." This instruction the court refused to give, and in lieu thereof gave the following: "Although the jury may believe from the evidence that the defendant, or its employees, gave no signal of the approach of cars, either by ringing bells or by calling out or otherwise, yet if the plaintiff knew the train was nearing the gateway to pass through, or could by such observation or watchfulness in approaching the railroad track as a man of ordinary prudence, under the circumstances, would have used, have ascertained that the train. was approaching to pass through in time to have avoided it by the use of such means as an ordinarily prudent man would have used under the circumstances, and did not so avoid it, he was guilty of such contributory negligence as bars his recovery." its It needs no argument to show that in this action of the court there was no error. In the instruction which was refused, no attempt was made to define the degree of care and caution which it was incumbent on the plaintiff to have exercised to entitle him to recover, an objection which does not apply to the instruction given. In the latter the jury were correctly instructed that to entitle the plaintiff to recover, he must have exercised such care and caution as an ordinarily prudent man would have used under the same circumstances, whereas the former is in this particular vague and indefinite, and was calculated to mislead the jury. It was therefore properly refused. |