The Bridgeport evening farmer., 1909-12-14

was eNluenCe IndI "ncu uC reached a point where he could have seen the engine he was looking, and 1t was a fair inference that he was then listening and did not know of the approach of the train until he saw it when his team was about 10 feet from the crossing and he from his place in the wagon about 25 feet from the crossing. And the jury might have found that he used due care In listen ing and looking and after he knew the
 train was approaching. He was in the
 possession of his senses.
 The wagon he was riding in made considerable noise and helped inter fere with his hearing an approaching trfan- The jury might have found that had
 there been a whistle blown at the
 whistling post the deceased would
 have heard if.
 The jury might have found that had
 the bell been rung from the whistling
 post the deceased would have heard
 The jury might have found that had
 other signals than the statutory ones
 been observed, the deceased would
 have heard or seen them.
 And the jury might have found that
 had these been given he would have
 stopped and thus avoided the acci-
 dent
 He was going moderately and was
 in the exercise of due care so far as
 his driving upon. the highway was concerned.
 Whether the deceased ought to have stopped. looked and listened. one or all can only be determined when all of the surrounding facts are known The finding of those facts Is for the jury: the disclosure of the situation is dependent on their finding. It is es- sentially a question of fact The court cannot place itself in the stead of the fury and find each of the various cir cumstances which go to make up the situation adversely to the finding which might have been made as to these circumstances from the evidence supporting the intestate's claim. and then draw from these varying cir curstances the necessary differences and conclusions from which 1t can say as a matter of law that deceased's negligence was a proxtmate cause of his death.
 If the facts were all determined. conclusion might be drawn But
 where the question whether a travel CT shall stop. look and listen depends upon the situation as 1t was then presented to him and that situation Is made up of numbers of independent facts which may or may not be found according as witnesses are credited or not there Is no tribunal which can draw the ultimate conclusion save the tribunal authorized to find facts and
 reach conclusions on those facts. The deceased had the right to rely in a measure on the statutory sig nals being given of the approach of a train. the extent that he had a right
 to rely upon these signals being given depended upon the finding of the sit- I uation disclosed by the evidence. the location and its dangers. the operation of the train. the conduct of the de-
 ceased. and the standard of what req sonahle care. under the circumstances
 presented. required on the part of jury can ascertain this. And having
 ascertained this. only the jury may determine Is importance to the case. , and whether the deceased having the right to so rely ought under the cir cunlstances to have stopped, or look
 ed or listened. one or all. The defendant rests. its motion very
 largely on Cottle vs. N. Y.. N. H. &
 was a review of the propriety of a
 non-suit where the facts must be
 found and the conclusions from those
 facts must be drawn by the reviewing of a jury. This cannot be said to be
 case where reasonable men cannot differ as to a verdict for the defen- dant. The fact that twelve men more competent than the average jury | in their county reached the conclusion they did tends to show that reason- able men would agree in their conclu-
 sions upon this evidence. And the experienced trier would be satisfied
 that the same case presented to | twelve other juries would result in a sir~''a- ver6'ct
 Cottle neither looked nor listened
 when he reached a point where he could have seen an approaching train. This evidence permits finding that Perro did both.
 It is unnecessary to point out fur ther the difference between that case
 and this. If the Cottle case held as
 the defendant claims 1t would be in antagonism to the doctrine which has
 been SO often emunciated by our
 court of the true province of the jury
 in determining the question of reason | able care.
 The conclusions reached are some
 what hastily stated. but they have
 been the result of careful considera- ton impelled to greater care since the growing practice of motions for non suit, motions to direct verdicts and
 motions to set aside verdicts made ai-
 most as of course by the defendant
 in negligence cases, with little regard
 to req son. judgment or justice. tends
 to create in the mind of trier a dis | trust of the sincerity Of the motion
 and sometimes leads to a nasty con
 sideration.
 The motion to set aside the verdict Is denied.