Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1912-11-28
CARE MUST Be USED IN
CROSSING R.R. TRACKS
DECISION OF THE STATE sU.
PREME COURT INVOLVING !,
RIGHTS OF RAILROAD
COMPANIES.

Bismarck, Nov. 25.-The SUI
preme court has handed down de-
cision in the case of Mary Sherlock,
plaintiff VS.. the 500 Railroad COM
pany, a case from Barnes county.
Among the points noted in the de-
cision of the court are the follow
ing:
A driver about to cross railroad
track at a public crossing in the
country is charged with knowledge
that such crossing is a dangerous
place, and that it cannot be assumed
that cars are not approaching from
either direction. He is bound to
assume that cars are approaching
until satisfied by direct evidence to
the contrary, and to this end must
vigilantly use his senses of sight and
hearing and do all that ordinary
care and prudence would dictate,
having in view the surrounding cir
to avoid injury, regard
less of whether any signal is given
by an approaching train.
To neglect such ordinary precau-
tions regarding the approach Of a
train and when the taking of such
precaution would have avoided an.
accident, negligence is conclusively
established and no recovery can be
had, where an injury is due to neg
ligence of both parties. ( ! 4
a The greater the danger, by reason
of weather conditions making it diff
ficult to see train or hear its ap-
proach, the greater the caution nee
essary to constitute ordinary care.
The law of self preservation may
usually be considered in favor of the
plaintiff, where doubt exists as to
his ability to see or hear an ap-
preaching train, bnt whenS no SUCH
doubt appears, and It is clear that
had he looked and listened, he could
have seen such train, and the eyi-
dence shows that he was not in the
exercise of ordinary care, no infer
ence arising from the instinct of
self preservation is applicable in his
favor.
1t is the travellers duty to-lock in
both directions at crossing, for
trains, and this rule is emphasized,
where there are two tracks which
render it possible for trains to ap-
proach from either direction or pass
each other at the crossing.
The only diversion of attention
excusing failure to look and listen
at a railroad crossing is where the
attention is SO irresistably forced to
something else as to practically de-
prive q traveller of the opportunity
to look and listen.
While great care should be exer-
cised in receiving Photographic ex-
hibits showing elevs tions, they may
be received when properly verified
and it is clear that conditions were
the same when taken as when an ac-.
cident occurred. i
Plaintiffs husband was killed at
a railway crossing, December IA,
1906. Photographic exhibits Offer
ed in evidence were taken the next
June. The record discloses that the
conditions were the same as when
the accident occurred except as to-
snow and the removal of one build
ing. on the side of, the highway not
necessary to consider in relation to
the issues. Held, that the differ
ence in conditions, under the cir
disclosed, was immater-
ial.
Plaintiffs husband was driving a
team and grain tank north on q
highway toward a railroad crossing
at slow walk, and was killed by
train on the crossing, approaching
y = II -s.sl-
from the east at from eight to ten
miles per hour. The view from the
for ct least LOO feet south
81 the crossing OF the railway to-
ward the east was unobstructed ex-'
rept by two houses on the east side
81 the highway. It was 277 feet
from the most northerly house to
The crossing. For that distance the
view was quite unobstructed. The
deceased. while passing at least be-
Iween the houses and the crossing.
looked steadily toward the north
west. He wore s fur collar with
she collar turned over his ears. The
wind was from the north west: He
made no effort, az least Turing that 4
distance, TO ascertain the approach