The Carbon advocate. [volume] (Lehighton, Pa.) 1872-1924, 1877-04-07

WHAT Is CoNTRIBUToRY NEGLIGENCE
IN CROSSING A RAILROAD.

WHAT is C0NTRIBUTORY NEGLIGENCE
IN CROSSING A RAILROAD.
Central Railroad Co. of New Jersey
VS.. Mary Fellpr ct al Error to the
Common Pleas Of Carbon county This
was an action for damages for the kill
ing of Henry Feller, Sr, by a locomo-
tive of the railroad company. The Cen
tral Railroad, as it runs through Weiss
mort, southwark, crossed with a single
track at right angles public road rum
ming east and west. The approach to
the crossing Ivy the public road on the
west side was by ascending an incline
of 100 feet long, with an elevation of
~ degrees. To the north Of the cross
ing in the direction of the railroad sta
tion, were number of buildings and
large rolling mill. There was also on
the side of the track itselfa watchman's
house placed there but short time be-
fore the accident. On the morning Of
March Goth, 1874, Henry Feller a man
70 years of age, and partly deaf, came
to Weissp0rt. On his return home later
in the day. he was about to go up the
hill towards the crossing, when he was
told by friend to stop, as train was
coming. He paid no attention and
drove on until he arrived within few
feet of the track, when he was seen
standing in his wagon and lashing his
mules. He was run over and killed.
This suit for damages was then
brought, plaintiff setting out the facts
above mentioned. and alleging that the
accident was the result of the negligence
of the defendants. They cOntcnded
m I, .I,yl l. 4
his view cut off by the rolling wiil, the
rolling mill stack and the watch-house,
and was unable by reason of these im~
pediments to see the approaching train
until he had reached the top of :he as
cent and stood directly in front of the
track. They therefore claimed that the
company was negligent in not keeping
a watchman at so dangerous and fre-
queuted a crossing in putting up its
watch house where it impeded the view,
and in keeping its roadway at the cross
ing of the road in such condition as to
make the crossing a dangerous one at
any time.
In answer to this, the railroad COM
pany claimed that they had been guilty
of no negligence, as they had whisted
and rung the bell as they approached
the crossing, and had done everything
that the law required of them. But,
even admitting they had not done this,
they contended there was no liability on
them, inasmuch as the deceased had
been guilty of contrbutory negligence
per Sc, and hence could not recover. In
support of tl3is. they contended that the
decedent, who was deaf, or partially so;
xphn familiar yuith tho arnSSinn .
was driving pair of manageable horses
which he could have stopped anywhere
on the ascent; who stopped at few
feet of the railroad crossing and then
raced his mules across who could have
seen the train before he reached the
watch. house, and who should have
heard the whistle of the locomotive,
which others all around him heard, was
bound to have COTTON out of his wagon
and gone up to the head of his team and
looked up and down the track before
crossing. His failure to have done this,
they asked the Court to inst uct the
Jury by binding directions, was negi-
gence per Sc, in which case there could
be no recovery.
This the Court below refused to do,
but left it as question of fact for the
Jury to determine whether the decedent
did all that prudent and careful man
would have done under the crcumstan-
ces whether, under all the circumStan-
ces of the case, prudent, cautious man
would have got out of his wagon and
approached the track at the head of his
mules. and whether, in view of the par.
tial deafness of the decedent, such eX~
ira caution as getting off his wagon,
&C., was Incumbent upon him as a pru-
dent and cautious man. Under this
ruling the verdict below was for plain
tiff in the sum of $1S40. Assigning the
charge of the court as error, the railroad
company seek reversal. They con.
tend that in the case of a deaf man who
drives upon the track of railroad com.
pany because he don't hear the whistle,
which every one around him hears, al
extra degree of caution in the exercise
of his unlmpalred power of vision is re-
quisite.
A man thus afflicted should have gOt
out of the wa on and looked up and
down the rack, and his failure so to dc
is negligence per Sc, thing which the
Court Is bound to take notice of aud moi
leave as an optn question of fact fol
the jury. 1t was also cOntended thai
the Court erred in Affirming the point
of plaintiff below to the effect that if the
jury believed that the watch-hOuSt
erected by the company Obstructea thC
view of the track, the company were
responsible. Exception was also taker
to the action of the Court in leaving il
a. fact tor the jury to find whether
the erection of the watch h-house was OF
was not negligence on the part of the
company ard also to its ruling in leav
ing to the Jury to say whether or MOI
deceased was guilty OF cOntributory
negligence in crossing the track aftel
being warned, when, under the law, i
should have charged that by his act hi
was so guilty.
Defendants in error, on the othel
hand, contend that the ruling of tn,
Court below was correct. They ave
that, as all the law required of plain
tiff in order to recover damages for hi
death was to stop, look and listen be
fore crossing railroad, and did no
even require of him to prove athrma
lively that he did this, it would hRV