Cooper v. Railroad

¶1dissenting: Conceding the force of the view presented in the opinion of Mr. Justice Hoke, I think that, considered as a whole, every question of law applicable to the evidence was presented to the jury in the charge. His Honor said to the jury that “the traveler has the right to expect such warning to be given to him'and he must look and *230listen when approaching a crossing, and his failure to look and listen when such warning is given is negligence, and if such failure should cause his death, no recovery could be had for it.” He then stated the proposition in a negative form; “but when the train does not give timely and reasonable warning of its approach, it is not contributory negligence in a traveler to go upon the track without looking and listening for the approach of the train, if he exercises that prudence and care which a prudent man would exercise under the circumstances,” etc. I think that with this language construed in the light of other portions of the charge favorable to, and given in, the words of the defendant’s prayer, the jury could not have been misled in regard to the relative duty of the plaintiff’s intestate and the defendant. Upon this view and for the reasons and authorities cited in the opinion of the Chief Justice, I concur in the dissenting opinion that there is no reversible error. I do not care to express any opinion in regard to the weight of the testimony; nor do I think that the other questions discussed are presented by the record. They are not “matters of law or legal inference,” and I do not care to express any opinion in regard to them.