Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-11-26

elected, and when the taking of such pre-
! cautions would have avoided an accident
negligence is conclusively established, in the
absence of conflict in the evidence on these
subjects.
3. Where an injury is due to the negli-
gcnce OF both parties no recovery can be had.
t.. III" greater the danger, by reason OF
weather conditions rendering it difficult to
see a train or hear its approach. the greater
the caution necessary to constitute ordinary
care.
5. The law of self preservation may usu-
ally be considered in favor of the plaintiff
where doubt exists as to his ability to see
or hear the approaching train, but when no
such doubt appears, and it is clear that had
he looked and listened he could have seen
such train, and the evidence shows that he
was not in the exercise Of ordinary care,
no inference arising from the instinct OF self
preservation is applicable in his favor.
q. While there may be exceptional circum-
ance of the rule regarding looking and lis
:cning. it is HELD. that the facts of this
case disclose no such circumstance.
r.. 1t is the travellers duty to look in both
directions, at a crossing, for trains, and this
rule is emphasized where there are two
tracks which render it possible for trains to
approach from either direction or pass each
other at the crossing.
s. The only diversion OF attention e~xcusing
failure to look and listen at a railroad cross
lS - WIKI t.C dltSHtlOll - 81 ulcSIslluly
forced to something else as to practically
deprive a traveller of the opportunity to look
and listen.
8. The exclusion of evidence of witnesses
as 10 the possibility of their hearing the
signals OF the train, if any were given. just
prior to the accident. was non prejudicial
when it was the duty of the. deceased to
look and listen regardless of signals.
10. While great care should be exercised
in receiving Photographic exhibits showing
la, , ~,, tt,,r ,x..,, L. --., ix .1-
crly verified and it is clear that conditions
were the same when taken as when an &C
cident occurred. ,
II. Plaintiffs husband was killed at a
railroad crossing December 18th, 1906. Pho
Geographic exhibits offered in evidence were
taken the following June. The record dis
closes that the conditions were the same as
when the accident occurred except as to snow.
and the removal of one building on the side
of the highway not necessary to consider in
ference in conditions, under the circumstances
disclosed, was immatcrial.
II. Plaintiffs husband was driving a team
and grain tank north of a highway toward
4 railroad crossing, at a slow walk. and was
killed by a train on the crossing approaching
hour. The view from the highway for at
least ], ZOO feet south Of the crossing Of the
railway toward the cast was unobstructcd OK
cept for two houses ON the east side of the
highway. y "dS 80 lcct from the most
northcrniy, house to the crossing. For that
distance the view was quite unobstructcd.
The deceased, while passing at least between
the houses and the crossing. looked stead
lily toward the northwest. lie wore a fur
cc"t with a collar turned over his ears. The
wind was from the northwest. He made nc
effort at least during that distance, to as
certain the approach Of any train from the
cast. HELD, that, assuming that no sigma
was given by the train, he was guilty OF
contributory negligence and not exercisin.
hs senses of seeing and hearing, prccluding ;
recovery for his death.
(Syllabus by the court.)
Appeal from a judgment of the district
court Of Barnes county. Burke, J..
Affirmed.
N. A.. Hildrctl. Fargo. y. D, for plain.
tiff and appellant
Lee Combs and l.. S. 3. Richie, Vale,
City, N. D., A.. II. Bright, Minneapolis,
MINI, Of counsel, for defendant and re.
spondent.
Opinion by Spalding. c. T.. Burke, J., be.
ing disqualified, did not participate.