, 1892-04-04

Ing.
[Rotice-All decisions OF the supreme
court will appear in THE DAILY AM
WEEKLY TRIBUNE.l
Frank Ladouceur, appellant VS.. Northern
PacIhc Railroad company, respondent.
No. 287-The appellant sued the respond.
ent for damages for injuries caused by the
negligence Of the railroad company. All
the close of plaintiffs testimony the court
granted motion for a non-suit on the
ground that his evidence showed that be
was negligent, and that his negligence con
trlbuted to the injury. The plaintiff was a
youth 81 years Of age, and at the time he
was injured, was driving team and wagon
on street in the city of Seattle, and was
injured by collision at the public cross.
ing with the train of defendant on the af-
ternoon Of August 8, 1890. The street was
a much travelled public highway. The
railroad runs north and south, and the
street running northwest and southeast
crosses 1t at sharp angle. The train and
plaintiff were going in the same general
northerly direction toward the city. There
was testimony to show that the plaintiff
at the close OF his days work, between S
and O'Clock in the afternoon, left brick
yard about half mile from the crossing
and from there was driving home towards
the crossing at slow walk. On his wagon
was allow Wood-rack twelve feet long. He
was seated on the right-hand side Of the
WoOd-rack between the two wheels. the
customary place for the driver Of d wagon
carrying that kind of rack, SO that he
could conveniently attend to the brake.
Commencing at point about 65 feet from
the track at the crossing was a decline ex-
tending down to the CROSSING, Before this
point 65 feet from the track is reached
the view of the track to the south was
somewhat shut off by buildings along it and
the track to the north ofthe crossing can be
seen for only a few feet After beginnino
the descent of this decline the view "a hotR
the south and to the north was yery limited
on account of the ernbankments and The
fences of the railroad, and weeds and busb-
es growing along the side of the railroad
1t appears by the testimony that n was q
freight train behind time and running at 4
high rate Of speed, which caused the IL
Jury. That no whistle was blown. or Nell
rung until it was right at the crossing. The
speed of the train was so great as to excite
comment from persons who saw it going.
Testimony to this effect was admitted with
out objection. The failure to blow the
whistle until within a few feet Of the cross
inc was also noticed by certain en1nlovaes
Of the company. who were section hands
working in the vicinity, and was Comments
ed on by them before it was known that
anyone had been injured. The testimony
as a whole, if true, showed culpanIe neoii-
gence on the part Of the employees of Fhe
railroad company in charge Of the train in
approaching SO dangerous a crossing under
such a high rate of speed. and es0eciallv
in not seasonabIy giving warning.to peonle
who might be travelling in the vicinity. bv
blowing the whistle or ringing the hell
The respondent contends that the Main
tiff before he attempted to cross the track
should have stopped to listen for the sound
of an approaching train. and failino to
l,o 5l1,1. -
negligence and cannot recover.
This question was twice before the su-
preme court of the territory in the case of
N. p. R. r. Co.. vs.. Holmes. g WASHINGTON
Territory POP and 543 When first before
the court it was held that it was the dutv
of the party injured to have stopped. *
petition for a re- e-hearing was granted. and
later there haying been change Of the
members Of the court meanwhile, the cues
ton was decided otherwise under the facts
of that case. There were dissenting opin-
ions upon both hearings But in the opin-
ion last rendered the court saws. 6that if
may or may not be the party's duty to ston.
look and listen is dependent on tie statiIss
tof each case.n
1t was conceded that there might be cases
where it would be a party's duty to Rstop
listen, and l am we'll satisfied that such
should be the rule under some circum-
stances.
AS to this particular case there was testi-
mony to show that EXTENDING from the ton
of this Incline which was sixty-fiye feet
distant from the track, was a strip of sew
,eral hundred feet in length where the road
was nearly level, and there was a conflict
in the testimony as to how far a train could
have been seen from this level street com.
ing from the south, some Of the witnesses
placing the distance at mile OF. 50, Others
at few hundred feet and some saving If
could be seen only a little WAYS. It seems
the plaintiff did not look to the south
while passing along this strip, nor until he
started down the incline, and here again
the testimony was conflicting as to how
far train could be seen coming from the
south. There is some confusion also be,
cause some of the witnesses spoke of the
distance the track could be seen before the
view was shut off by shrubbery, etc. The
train being higher than the track could
have been seen for some distance further
But there was testimony to show that from
no point along this incline could the trair
be seen for more than two or three hund.
red feet therefrom. The testimony of the
plaintiff shows that he had crossed the
railroad at this point a good many times
within the three months Immediately pre-
Ceding the accident; that whenever be haC
seen train in that vicinity before he had
always heard them ring bell or blow
whistle when they were approaching
and before they got close to the
crossing that he looked to the south for {
train while going down the incline, but
that his view was obstructed by a passing
wagon; that he listened for one but did
not hear any and that he did not stop;
that he looked to the south again when ht
was about twenty feet from the crossing
and could see about 175 feet along it only
and that he could not see and did not hea.
any trains that he then looked to the north
J. and w inst hO11t tn lOOlY tn the cnmtb
again when the engine gave the first alarm
by danger whistle; that when the whistle
was first sounded the horses were across
the track, the wagon was half way across
it. and he was just over the middle Of th,
track; that he Immediately struck th,
horses and he was just on the west rail O
the track when the engine struck the rea