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-
nance by an excessive rate of speed, but also in approaching this crossing withOut signals. The· only qllestion is whether the deceased guilty of contributory negligence. The rule laid down by the supreme court of the United States is, briefly, that a man must look and listen when approaching a railroad. crossing; and if, by looking or listening, he can 'ascertain the approach of a train, he is guilty of contribunegligence if he fails so to do. There is no dispute in this testimony as to the facts. At the time of the accident no witness saw the deceased. He was seen just before the accident, about75 or 100 feet from the crossing, approaching the track. He could see in. either direction. A freight train was approaching from the east, and its rumble and roar, and perhaps its whistle, attracted his attention; and coming from the west was a passenger train. There W/l.S nothil).gto obstructthe vision towards the west except the matter of smoke. If he had looked,there being no sil10ke ill, the way, he must ,have seen the train, and there cannot be a shadow of a questionb1,lt that he would have ,been guilty of contributory negligence, thus approaching the track witllout noticing it. Does this question ofthe smoke change the case? We must remember he was familiar with that track, because, he had crossed it daily during the must have known that there were two two months prior thereto. tracks, and that a train was liable to come on each track; and if, when approaching a track, he finds anything which temporarily obstructs his ion, it is his duty to wait until the temporary obstruction is renloved. He cannot, say, "There is something temporarily obstructing my vision, but I will take it for granted that there is no danger," and undertake to cross the track. If it is a mere temporary obstruction, something that would pass away in a moment, as in this .case,-a breath of wind moving the smoke,-he is guilty ofcontributory negligence ifhe pushes ahead with the knowledge that there is a track upon which a train may be approaching at any time. If the obstruction had been of a permanent character, and he had been where a single step would put him upon the track, then there might be some difference; but here the obstruction, if there were an obstruction, that prevented him from noticing the train, he if he had waited but a moment, he must have known was but would have seen that the track was not clear. The probabilities are that he saw and heard the freight train; heard its rumble and its whistle; saw it approach, and did not think anything about another train passing at the ,same time. This is probably the truth. If he cam'e to the track, and found the air fullofsmoke, and could not see, or, if able,to see, he did not look, then, and in either case, he is guilty of contributory negligence. So, whether he could see and did not look, or could not have seen and did not wait until that obstruction had passed away, is immaterial,-one or the other must have been true, and in either event he is guilty of contributory negligence. The. law.lays it down clearly that a man must look and listen. And if, by looking and listenIng, he could ascertain the approach of a train, and fails to do so, he is guilty of contributory negligence, and cannot recover. ' Verdict ordered for the defendant.
CHADBOURNE V. GERMAN-AM'ERICAN INS. CO.
GERMAN-AMERICAN INS. Co.
(Circuit (Jourt, S. D. New York.
July 16, 1887.)
INSURANOE-CANOELLATION OF POLICy-NOTICE.
A policy of insurance provided that it might be terminated at any time on giving notice to that effect. and that, on surrender of the policy, the insurance company should refund any premium that. might have been paid, reserving pro rata rates when terminated by the company. The. polie:v was taken out by A., who gave his obligation for the premiums, and made payable to B., a mortgagee. Subsequently the policy was confirmed to B., who had beCome the owner of the property, ,and was made payable to .c., a new mortgagee. The company notified B., and C. by mail on Friday, which notice was received about 10 o'clock Saturday, that the premium was unpaid, and that the policy would be canceled unless the same was paid on or before the next day. On Saturday the company,notified B. and C. by mail. which notice was received about 10 o'clock Monday, that the policy was canceled, and demanded a return of the policy, and payment of the earned premium. The premium. was not paid: and the prope'i-ty was destroyed by fire between noon and 2 o'clock onthe same day. HeN" that no notice having been m",ilcd to A., who was alone under any obligation to pay the premium, B. and C. were not guilty of any fraud or default authorizing the attempted cancellation of the policy, and that the company was liable for the loss. The question of reasonable notice in such case sho,uld be submitted to the jury, when it appears that the property was of such a nature that insurance companies would not take a risk upon it without a survey, and the fact was controverted as to whether there was sufficient time for such survey and reinsurance after the first notice was given, and before the time of the fire. In such case it would seem that a surrendEll' of the obligation given by A.. the original mortgagor, for the premiums. was requisite to effect a termination of the ,risk: and if this was so the plaiontiff was entitled, in a suit on the policy, to the direction of a verdict in his favor, and the defendant company was not, therefore, wronged bv the submission of the case to the jury.
,SAME-REASONABLE NOTICE-QUESTION OF FACT.
SAME-StrnRENDER OF OBLIGATION-SUBMISSION TO JURY.
Motion for a New Trial. Roger Foster, for plaintiff. WiUiam D. Murray and Luke A. Lockwood, for defendant..
WHEELF.R, J. This action is brought upon a policy of fire insurance. It was originally procured by Nye & Co., on credit for the premiums, and made payable to the Jennings Lumber Drying Company, mortgagees. This company became the owners of the property, and the policy was confirmed to them, and made payable to the plaintiff as mortgagee. It contained a clause providing that it might be terminated at any ,time on giving notice to that effect, and that, on surrender of the policy, the defendant should refund any premium that might have been paid, reserving pro rataratas when terminated by tqe defendant. On Friday the defendant issued a notice to the Jennings Lumber Drying Company that the premium remained unpaid, and that, if it was not paid on or before the next day, the policy would be canceled, and sent the notice to that company, and a duplicate of it to the plaintiff, both of whom received iton the next day at about 10 o'clock. The premium was not paid by anyone, and on that next day, the defendant sent another no-