CHICAGO & E. I. RY. CO. v. McCOY

CHICAGO & E. I. RY. CO. v. McCOY. Circuit Court of Appeals, Seventh Circuit. December 7, 1929. No. 4214. H. B. Aikman, of Terre Haute, Ind., for appellant. C. G. Shake, of Vincennes, Inch, for appellee. Before ALSCHULER, PAGE, and SPARKS, Circuit Judges. [MAJORITY — ALSCHULER, Circuit Judge.] ALSCHULER, Circuit Judge. The appeal is from a judgment for damages occasioned hy a train of ears striking an automobüe at a crossing of a street and railroad in Vincennes, Ind. But one proposition is advanced by appeEant, viz., that appellee’s contributory negligence bars his right of recovery. The engine was hacking six box cars toward and across Sixth street, whereon appellee was driving his automobile. It was dark, the railroad crossing was whoEy without guards, and there were no lights in the near vicinity. There was abundance of evidence that the nearest car of the train was without light or guard, and that no signal or notice of its approach was given; and that appellant, and another in the automobile with him, looked and Estened as they approached the crossing, but did not see or hear the approaching train. It seems that both train and automobüe were moving slowly, and under the evidence it is quite possible that, even if the train might have been seen from the automobüe approaching on the diagonal crossing, it might not have been manifest to those in the automobüe that the train was moving. The evidence faEs far short of establishing as a matter of law such contributory negEgenee of appeEee as would bar his recovery. Upon this record the' question whether appeEee, by his negligence, contributed to the occurrence, was for the jury; and its conclusion thereon we are not at Eberty to disturb. The judgment is affirmed.