v. Rosa, 112 U. S. 377, 5 Sup. Ct. Rep. 184. sented. The motion for a new trial is denied.
No such case is pre-
CHURCH, Adm'r, etc., v. NORTHERN PAC. R. Co.
(Oircuit Oourt, D. Minnesota. June Term, 1887.)
NJ:GLIGENCE..:.-DEATH AT RAILROAD CROSSING-EvIDENCE TO RENDER RAII,ROAD LIABLE;
In an action against a railroad company to da,mages for causing the death' of plaintiff's intestate, who was picked up on a crossing on a dark nigh1: in November,baving baen struck apparently by defendant's train, wbich had passed a few minutes before, the principal witness for plaintiff testified to hving near tbe crossing; that, from bis bouse, having retIred for tbe nigbt, be heard a scream '.IS the train passed, and the jumping of the whl:'elson the rails; that be heard no beH or other signo.l;.that he went down, and. plaintiff's intestate on the track, having received injuries from which he afterwards died, and saw the train disappearing, with cars ahead of and behind the locomotive. There was no at the crossing. There was evIdence that the deceased had been drinkmg intoxicating liquors. Held, that thete was not sufficient evidence to justify a verdict for plaintiff; and that, after verdict for defendant, a motion for a new trial should not be granted.' . .
At Law. Action to recover damages for death of the plaintiff's intestate through injuries caused by the defendant's negligence. On motion for new trial. C. F. Baxter, for plaintiff. N.O. Clough, for defendant. NELSON,J. This case was tried at the last term ohbis court, a verdict found for the defendant, and a motion for a new trial is made by the plaintiff. The administrator of Soren England brought suit to reCOver for the death of his intestate. The latter was found lying alongside of the-track of the Northern Pacific Railroad Company on the night of November 27,1885, in the city of Minneapolis, at a crossing on Twenty-first avenue nort\.I, and died soon after being removed to the hospital. Bruises and fractures upon his person and blood upon the rails indicated that he had been struck and run over by defendant's train. The night was dark. There were two tracks at this point, and the body was found near the west track. There is no testimony offered of any person who saw the injury inflicted. The accident occurred about 10 o'clock at night. The principal witIless, who lived near the track on the north-west comer of Twenty-first avenue north, testified that he was in his room in the second story of his house, and heard the train passing, and says he heard th., scream of a man, and the wheels jumping on the rails; and, believinb that s0Ir\e one was hurt, got up and arrived within five minutes of the time that this accident happened, and found this man in a position v.31F.no.9-34
: FEDERAL REPORTER.
indicating that he ha.d been seriously injured. He testifies he did. not hear the ringing of any bell, or any signal given, when the train went past, and when he reached the body of the man he locomotive headed south, with one or two cars ahead of it, and three or four cars behind it. There was evidence also tending to show that the plaintiff's intestate had been drinking intoxicating liquors. The testimony I think is sufficient to charge the defendant with the death of the plaintiff's intestate,. blft there is no evidenc.e sufficient to justify a verdict for the plaintiff based upon defendant's negligence. The testimony of the plaintiff's witness is entirely of a negative character, and the facts and circumstances connected with it deprive it of much weight. ·The witness lived in a. brick house within 70 feet of the south side of Twenty-first avenue north. It was in November when the accidenfocburred, and the doors<and windows were closed. Tho witness·was upstairs, and had retired for the night. Trains had been running foJ.' more.thana year, making this crossing night and day, ,so that there was nothing unusual to call his attention to, this particular locomotive and train until he heard the scream of the deceased, and went to see whatwfisthe'matter. How can it be saidtbfit,nndersuchcirthat he did pot. hear the ,bell ring or any other signal was .sufficient to establish negligence on the part of the defendant, or to the that this accident 'Was due to the negligence of 'the defendant? The evidence shows that there was DO flag-man, but if there had been one, he would have been of no service on that dark night, unless he happened to have been at the point where the ,deceased was starting on .thetrack. It is:incumhent upon the'plaintiff to prove negligence on the part of the defendant, and if the train was backing, and no signals or light were displayed at the end of the train; and this caused the death of the plaintiff's intestate, he mustishow this. No sllch fact has been proven. It can be as readily inferred that the deceased was intoxicateU\,a"tld broughtthe' injury and subsequent,death ppon him: self, from thedact that the odor- of liquor was apparent in his breath, as to say that the death was proved to have resulted from the negligence ·of the'defendant. It was claimed that some evidence going to the question of damages was excluded by .the court, but that becomes unimportant in my view of this case. The motionfo:r a new trial is denied.
U'caORY v. CHICAGO, McCRORY, Adm'x, etc.,
CHICAGo,M. & ST. P.
June 13, 1887.)
(Oircuit 001trt, f). Minnesota.
NJl!GLIGENCE-RAILROAD CRO!lS!NG-CONTRmUTOEY NEGLIGENCE.
The ljUle .that a man must look and listen when approaching a railroad cross, ing, and if, by looking or listening. he can ascertain the approach of a train, he is guilty of contributory nel\'ligence if he fails so to do, applied to non-wit the personal representatives in an action against a railroad company to recover damages for the killing of deceased by defendant's train, it appearing ,that deceased, who was familiar with the scene of the accident, while approaching a crossing over defendant's tracks, was killed by an approaching train,the view of which was obscured by smoke, bllt which he must have seen had he waited a moment for the obstruction to blow
This action is brought by plaintiff, the personal representative of Charles McCrory, deceased, to recover damages for the. killing of said McCrory by train., The testimony showed that plaintiff's intestate was last seen approad:ling on foot'a crossing of 'defendant's track at Twenty-sixth avenue south, ,Minneapolis, Minnesota, about 75 feet ftofu the tril:ck, a few minutes after 9 A. M" on the morning of January 24, 1886:, iind that he was' run over and killed by a regular passenger train rUnning between Minneapolis and St. Paul. It appeared that at the time of the accident a fteight train from the east was going over the crossing, and the passenger train which caused the death of McCrory was approachinjpapidlyfromthe west, the latter, train being on the track nearest deceased. It was admitted that the passenger train was running considerably highet tate of speed than was allowed by the ordinanceofthe city of Minneapolis,-from 18 to 24 miles an hour, the witnesses said; and the testimony was to the effect that no bell was rung or whistl'eiilounded. It was admitted there was no flag-man at the drossfng. ' It was also shown' that at this point the country is flat, with but few houses,' in the immediate vicinity of the crossing, and that, when deceased Was within 75 feet df tlie track, and from that point to the crossing,tbe view ofthe track on which the passenger train was approaching was entirely clear and 'unobstructed. Nobody seems to have witnessed the The morning was very colcl,-30 deg. below zero, according to the testhriony of one witness, -with a strong wind from the northwest; and it was testified that the steam and smoke from the engines, instead of rising in the air, fell to the grortnd, and covered the tracks at the crossinK, thus enveloping the deceased, and hiding him from .viewi and that probably the steam and smoke from the freight ,the approaChing passenger train. After the introduction train ofplairitift"s teE'timony the defendant moved that the jury be instructed ,to find a. verdict for the defendant, upon whiehthe court gave the following opinion. , ' ," , O.K.' Davis, for plaintiff. " , TV:' H.1fwiis and F14ndrau, Squdres et Otttchwn, for defendant.
BREWER, J. There is bu,t one question to be determined. The railroad company was clearly negligent, not merely in violating the ordi-