eler has notice of the approach of a train.152 And so is it concurring negligence for the traveler to omit to use his senses. 153 § 297. Same Continued-Duties and Liabilities of Company with Respect to "Gates" and "Flagmen.”—The prevalent judicial opinion undoubtedly supports the view that in the absence of statute a railway company is not required to provide gates or flagman at their crossings, the question of negligence in such cases being always for the jury.154 The only difference in the authorities is that by some courts it is considered that all the conditions and circumstances in the particular case, such as the dangers, the travel, etc., should be submitted to the jury, for it to decide whether ordinary prudence demands that a gate or flagman be maintained.155 While other courts hold, as matter of law, that in exceptionally dangerous crossings flagmen should be maintained.156 This rule is only applicable to crossings in populous towns and cities, where the travel is great, especially in the night-time, when many trains are passing; it must be shown that the crossing is more than ordinarily hazardous, as in a thickly populated portion of a town 152 Pakalinsky v. New York Cent. Ry. Co., 82 N. Y. 424. 153 Gorton v. Erie Ry. Co., 45 N. Y. 664. 154 Eaton v. Fitchburg, 129 Mass. 364; Beiseigel v. New York Cent. Ry. Co., 40 N. Y. 9; Bailey v. New Haven etc. Ry. Co., 107 Mass. 496; Philadelphia Ry. Co. v. Killips, 88 Pa. St. 405; Railway Co. v. Richardson, 19 Ohio C. C. 385. 155 Central etc. Ry. Co. v. Kuhn, 86 Ky. 578, 9 Am. St. Rep. 309, 6 S. W. 441; Grand Trunk Ry. Co. v. Ives, 144 U. S. 419, 12 Sup. Ct. Rep. 679. 156 Cleveland Ry. Co. v. Schneider, 45 Ohio St. 678, 17 N. E. 321; Louisville etc. R. R. Co. v. Goetz, 79 Ky. 442, 42 Am. Rep. 227; Bentley v. Georgia Pac. Ry. Co., 86 Ala. 484, 6 South. 37; Western etc. R. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. Torts, Vol. I-39 or city; or that the view is obstructed, or that the crossing is a much traveled one, and the noise of approaching trains is rendered indistinct, and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business.157 Statutes and ordinances have been enacted requiring railways to construct and maintain gates, failure to do which being negligence per se, or prima facie evidence of negligence.158 When gates are required, or have been established at crossings, liability of the railway will then depend upon the care with which they are managed. If a gate is open, but negligently so, it may be regarded as an invitation to cross, and notice that there is no train approaching. But even then one passing over the crossing is not excused for not looking before crossing. 159 § 298. Same Continued-Flying-switches on Public Highway. It is considered "too plain to admit of a shadow of doubt that making a flying-switch on a public highway, which is in constant use, and without the car being attended by and under the control of a brakeman, is evidence of gross negligence," or per se negligence.160 But it cannot be contended that conduct of the servants so reprehensible as this will 157 Eaton v. Fitchburg etc. R. R. Co., 129 Mass. 364; Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 391; Grand Trunk Ry. Co. v. Ives, 144 U. S. 419, 12 Sup. Ct. Rep. 679; St. Louis etc. R. R. Co. v. Dunn, 78 Ill. 197; Bolinger v. St. Paul etc. Ry., 36 Minn. 418, 1 Am. St. Rep. 680, 31 N. W. 856; Pittsburgh etc. Ry. Co. v. Yundt, 78 Ind. 373, 41 Am. Rep. 580; Hart v. Chicago etc. Ry. Co., 56 Iowa, 166, 41 Am. Rep. 93, 7 N. W. 9, 9 N. W. 116; English v. Southern Pacific Co., 13 Utah, 407, 45 Pac. 47, 57 Am. St. Rep. 772, and note; 2 Thompson on Negligence, sec. 1527. 158 2 Thompson on Negligence, sec. 1528. 159 2 Thompson on Negligence, sec. 1528. 160 O'Connor v. Missouri Pac. Ry. Co., 94 Mo. 150, 4 Am. St. Rep. 364, 7 S. W. 106; Brown v. New York Cent. R. R., 32 N. Y. 597, 88 Am. Dec. 353. excuse a traveler from looking both ways before crossing the tracks, and he cannot recover if he has failed so to do.161 But the act of making a flying-switch is of such a nature as to disarm one in his vigilance. A person approaching a crossing, and seeing an engine with a large number of cars attached passing rapidly by, would naturally suppose that the danger of collision had ceased; his eye would follow the receding train, the noise of which would be apt to drown that made by approaching cars; but if he found himself suddenly confronted by a car rushing by, of its own momentum, his attention would be likely to be arrested by and attracted to that, without thinking that more were to follow unattended.162 Contributory negligence is just as much of a defense in this class of cases as in others, but by reason of the nature of the act of making a running switch, the ordinary precautions are hardly available, and the traveler is not prepared for such unexpected occurrences, and, of course, is not expected to anticipate such culpable negligence.163 It is held that even stationing a brakeman on the end of the car will not relieve the company from liability.164 If the circumstances and conditions are such as to disarm the vigilance of the person crossing, it would tend to excuse what otherwise might constitute contributory negligence. The cases are largely individual ones, depending much upon the particular conditions. But the general proposition is frequently stated that it is negligence per se for a railroad company to make a flying-switch across the streets of a town, along which people are constantly 161 Ormsbee v. Boston etc. R. Co., 14 R. I. 102, 51 Am. Rep. 354. 162 Brown v. New York Cent. R. R. Co., 32 N. Y. 597, 88 Am. Dec. 353. 163 O'Connor v. Missouri Pac. Ry. Co., 94 Mo. 150, 4 Am. St. Rep. 364, 7 S. W. 106. 164 2 Thompson on Negligence, secs. 1695, 1696. accustomed to travel,165 although the question should ordinarily be submitted to the jury.' 166 § 299. Same Continued-The Cases.-Where a person is driving alone in a carriage along the highway toward a railroad crossing, and a long freight train is passing at the same time at a good rate of speed, and upon seeing the locomotive and several cars pass on ahead over the crossing leaving the same clear, he drives along to pass over the crossing, upon which the remaining cars which are detached from the engine and cars come along upon the crossing propelled by their own momentum, while making a running switch, which causes the horse attached to the vehicle to suddenly swerve, throwing the person out to his injury, this is negligence on the part of the railway company, though there be a brakeman on the rear end of the first section who makes signs of the dangers of the crossing, it not appearing that the traveler understood the same, or even saw them, the company is liable, the traveler not being guilty of contributory negligence.187 And where a person is driving along a highway with care, and upon approaching a railway crossing sees a train pass, there being no flagman and no warning of the approach of another car, and upon passing over the crossing is struck by a car detached from the train just passed which has been separated from such train for the purpose of making a running switch, the plaintiff being able to see the track for a considerable number of feet in the direction from which the car came, supposing, how 165 Fulmer v. Illinois Cent. R. R. Co., 68 Miss. 355, 8 South. 517; Brown v. New York Cent. R. R. Co., 32 N. Y. 597, 88 Am. Dec. 353; Chicago etc. R. R. Co. v. Garvey, 58 Ill. 83; Louisville etc. R. R. Co. v. Coleman, 86 Ky. 556, 6 S. W. 438, 8 S. W. 875. 166 Ohio etc. Ry. v. McDaneld, 5 Ind. App. 108, 31 N. E. 836. 167 York v. Maine Cent. Ry. Co., 84 Me. 117, 24 Atl. 790. ever, that no car or train would so soon follow another, the question of whether such plaintiff was in the exercise of due care should be submitted to the jury. 168 In another case in Wisconsin, a farmer on his way home from a small village, upon approaching the crossing, saw a locomotive and a freight train nearing the crossing, for which the farmer stopped to let it pass, after which he drove on, whereupon a single detached freight-car following the train about two hundred feet behind, running by the impetus given it by the speed of the train and by its own momentum, comes upon the crossing without warning or signal, and unseen by the plaintiff, striking him, the company was held liable and the plaintiff not guilty of contributory negligence, even though there was a brakeman on the front end of the car who hallooed to plaintiff, and a brakeman at a switch near by did the same thing, neither of which plaintiff could hear. The human voice is weak and of little use as compared and in competition with the noise of the cars. 169 168 French v. Taunton Branch R. Co., 116 Mass. 537. |