The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-01-31

as person of ordinary care and prudence
| would do under like circumstances.
| you are further instructed, that the
| fact that the defendant, the Chicago
| Rock Island and Pacific railway company
did maintain and operate gates at the
| crossing where the collision occurred, VI
| to the hour of six o'clock p. m, did not
create or impose any obligation or duty
upon it to operate said gates after that
hour or to lower said gates as trains
approached Douglas avenue upon its rail-
way, unless you find fran ell the facts
and circumstances introduced in evidence,
that ordinary care upon the part of de-
PENDANT company required the maintain
ance and operation of said gates after
that hour
you are further instructed that, al
though the defendant, the Chicago, Rock
Island and Pacific railway company, De-
fore the accident in question, may have
kept a fagman at the crossing whose
duty it was to lower the gates at times
OF danger, the employees in charge OF the
train had a right to assume and to run
said train upon the assumption that all
persons while approaching and going
upon the track at the time and place of
the collision. would exercise all reason
able and ordinary care in looking up and
down the track and listening for ap-
preaching trains and cars, so as to pre-
vent collision at said crossing. In other
words, you are instructed that the fact,
If it be a fact, that the regularly en-
ployed fagman was not at the crossing
q fha TINA Of he collision IN
and that the gates were up. did not re-
Ieve persons going upon and crossing
said track from looking and listening for
approaching trains before going upon
said track. And, If you further find from
the evidence, that said defendant Wilson
failed to look and listen and thereupon
drove upon the track and the collision
occurred, such act upon the part Of said
Wilson would amount to negligence and
he would be liable to plaintiff for any
injuries charged in the petition received
Fly plaintiff, without plaintiffs fault or
negligence, as heretofore instructed, and
said defendant company would not be
liable therefor unless you further find the
defendant company failed to exercise or
binary care and prudence in the premises
and that the failure of said defendant
company to exercise such ordinary care
and prudence in the premises directly
contributed to the collision causing the
injuries aforesaid.
You are further instructed, that If you
find from the evidence, that the collision
occurred without PLAINTIFFS fault, at\the
Douglas avenue crossing in question, and
on a public street and highway as charg-
ed, and the defendant railway company
and its servants, carlessly failed to exer-
isce ordinary care in the respects and in
the manner charged, in approaching and
entering upon said crossing with it's train,
and carelessly failed to blow a whistle
and ring the bell, and carelessly failed to
give any reasonable or timely warning of
its approach, or carelessly failed to keep
said train under proper control under the
circumstances, or, if you find that the
defendant railway company in the exer-
else of ordinary care were required to
maintain and operate said gates at said
crossing on the approach of said train,
and If you further find that the defendant
railway company and its servants left
its gates at said crossing open and unat-
tended at the time in question in the
HldLleE CHdrSeu anu WeTS, uIiuGT the
circumstances, guilty Of carelessness in
so doing, as charged, then, if said manner
of approaching and entering upon said
crossing at said time, or, If such leaving
of said gates open and unattended at said
time, substantially and proximately con-
tributed to any injury of plaintiff as
charged, the plaintiff would be entitled TO
recover against said defendant railway
company for such injuries, If any, so
received whether the defendant Wilson
was guilty OF negligence in the premises
or not, provided the plaintiff had no con-
troll of said Wilson, and said Wilson had
sole charge of the team and vehicle in
which the plaintiff was riding. And, in
this connection, If the plaintiff were
merely riding in the wagon driven by
Wilson, and was without any control over
the animals drawing the same, or over
the driver, and did nothing more than
to be put down, and was in the exercise
of ordinary care in all the premises, as
heretofore instructed, then the mere fact
that the driver Wilson, may have been
guilty OF negligence in approaching and
entering upon the crossing, would not
prevent the plaintiff, Durand, from recov-
ering against the railway company and
Wilson, if the injuries complained of were
received by him in the manner charged,
and on account of and as direct result