The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1894-05-03
I,tpoi.rANT DECISION

Special DStG'ch 10 he Iaiellfgcnetr.
ChARKsnuRo, W. Va, May 2.-An I'm.
por;nnt opinion was handed down by
Judge Cob in tho United States circuit
court last week In tho caro- OF W. i.
Stout against the Baltimore & Ohio
railroad. Stout brought suit against
tho company for damages to himself
and team. While Mr.. Stout was cross
Ing the railroad east OF town n train
struck tho wagon. Ono horse was
Killed, tho wagon demolished, ind Mr..
Stout was hurt.
1t was clearly proven by the plaintiff
that no warning signal was given by
tho approaching train. Yet tho do.
ienuants attorneys, Hons. john A.
Hutchinson aid John BaBsell, hold
that ihorc had been carelcssnoss on tho
part OF Stout sufficient 10 dcbar him
from damages, and Judge Col 30 do.
ctded. The opinion, deciding the Ques.
ton Gs 1t docs, is given for the urst
time in this state.
Alter reviewing tho evidence in the
case, in which it appeared that no
warning signal was given; that the
crossing was II dangerous one, but that
the plaintiff did not exercise due caro- in
approaching 1t, tho court said:
Ihc rules OF law by which cases OF
this character arc to be considered and
determined arc now we'll settled by do
cisions that require our GcquicscoucO
and compel our assent. Tho 8uprcme
court oil the United States has indicated
plainly tho rule to Rpply. Most OF tho
state courts have adopted tho Same
rules. | regard 1t as we'll established,
that: First-A party suing to recover
damages for injuries occasioned by the
negligence OF another must show him
self free from negligence contributing
to occasion the injury complained OF.
SeCoad-A person intending to cross
the track OF railroad mus. mako use
Of his faculties to determine II there il
danger in the effort, or no will be held
by the courts guilty OF negligence.
Third-The question OF negligence, the
question not being disputed, is gues-
ton OF law for tho court. Fourth
Where 1t is manifest that tho court
should set aside verdict, II rendered
against party, 1t Is the duty OF the
court to instruct the jury not TO return
such verdict.
In this case there Ia no conflict in tho
testimony. All the witnesses examined
on tho point concedo the dangerous
character OF the locality, and the repu-
tation the crossing in question had in
that direction. The plaintiff admits it,
and says that he stopped his team be-
fore making the frat crossing and look
ed and listened; neither seeing nor
hearing train, he went over the track
at the first crossing, and passing along
the highway to point about ono hun.
drcd and fifty or two hundred feet from
tho second crossing, he again stopped
and listened, and again proceeded on
his way, driving his horses III n trot
down grade towards and on the cross
ing, without looking to the east, the d.
reCtion from which he expected train,
aud without hating during the one
hundred and fifty or two hundred feet
drive, until forced to do SO
by tho engine on tho track strik-
ing his horse. We must keep
in mind that the plaintiff know Of his
danger, and was aware OF the fact that
train was then due and liable TO come
Mt any moment; that he was on the
lookout Tor it, and surprised that it did
not come. Tho plaintiff could, at any
momont OF the time in which ne was
driving tho last one hundred and fifty
feet, by looking to his Lett to the east.
have seen the approaching train, or, ut
least, II no had halted. have heard it
and yet he did not look, he did not halt.
be did not even have the curtains OF
his wagon top SO fixed that he could
look. Had he looked during the timc
he drove the last fifty feet when the
train was almost on him, he could have
stopped or turned his team to ono side
and avoided the accident, but no did
not. His long familiarity with tho place
and tho danger seemed to make him
overconfident or indifferent, and he, I
can call it nothing else, wont recklessly
on to the inevitable result. Tho fact
that n regularly scheduled train was
then due at the very point on tho track
whoro the plaintiff drove was then
known to him, but did not cause
him to exercise ordinary, lot alone ex-
traordinary, caution. 1t may be that
tho railroad company was also careless;
so far as this motion was concerned,
the testimony so sh ows. but still tho
plaintiffs carelossness was so appar.
ent, so gross, that he must DO hold 70.
sponsible for tho injury to himself and
his property-his contribution was so
great that he cannot recover damages
from tho railroad company. It was
his duty to use his senses to listen and
to look at tho proper time and place
he failed to do so; no took tho risk, and
no must take tho results. 1t would
havo been tho part OF prudence, know
Ing as he did the danger OF the local.
itv, and that q train was duo. Had
the plaintiff halted east OF tho
first crossing he made, and waited for
tho train to pass, and not have placed
himself on the dangerous part OF the
highway between tho crossings, or at
least Tor him to have waited when he
halted between the crossings long on
ougli for tho train to travel from the
signal post to the crossing he had Just
made. This he did not debut think.
ing he could cross, believing his horses
quiet and safe, as he had heretofore
found thom, no lot them 20. and only
discovered his mistake when he found
it was too late to prevent tho accident.
1t is much 10 be regretted that he has
suffered bodily pain and loss OF property
and bad as that is, it would beworsc,
in my opinion-as I understand the law
and the facts OF this case-to permit
him to recover for that main and loss
from this defendant. 1t is well that the
plaintiff was not badly hurt, mutilated
or killed, or that the train was not do.
rallied and tho defendants employees
and passengers thereon injured or kill.
cd"