Elizabeth S. Salter, Administratrix, etc., Respondent, v. The Utica and Black River Railroad Company, Appellant

Elizabeth S. Salter, Administratrix, etc., Respondent, v. The Utica and Black River Railroad Company, Appellant. Where, in an action against a railroad company for negligence in not ringing a hell or blowing a whistle upon a train approaching a crossing, plaintiff’s witnesses, whose attention was called to the subject at the time, swear that they did not hear the boll, while defendant’s witnesses swear positively that it was rung, the question is one of fact for a jury. (Argued November 12, 1874; decided November 24, 1874.) While, where the severity of (lie weather requires a traveller upon the highway to protect himself from it, if the means taken materially impair his ability to perceive coming danger and he is injured at a railroad crossing, he is not to he freed from a charge of contributory negligence, yet, unless it is certain that the means used did have that effect, it is a question for the jury not the court. This was an action to recover damages for the alleged negligent killing of plaintiff’s intestate at a crossing. The alleged negligence was, that no bell was rung or whistle blown for a distance of eighty feet before reaching the crossing. Defendant’s witnesses testified positively that the bell was so rung; plaintiff’s witnesses testified that they did not hear it. Some testified that they did not think any thing about it, and that it might have rung without .their notice. Others testified that they heard it part of the way, but not continuously over the whole distance. One witness, although at one time swearing that he took no notice, afterward testified that he remarked then that he did not hear it, and remembered that he did not. Held, that the question as to whether the bell was rung or not was a proper one for the jury ; and a motion for a nonsuit, as far as this question was concerned, was properly denied. Plaintiff’s intestate was driving upon the highway in a cold day. He had on a cap with earlaps to it, and it was in dispute whether, in addition, he had a tippet about his head and ears. Held, as above stated; and that the evidence was not conclusive that the deceased had so dulled the sense of hearing as not to be able to hear the bell or whistle or rumbling of the train. Evidence was offered and received on the part of plaintiff, under objection, that the train was behind time. Held, competent; that, taken in connection with evidence of the rate of speed and the probable fact that the knowledge of the deceased of the time for the train to pass, it bore upon the question of negligence. So, also, that evidence of the speed of the train was proper as bearing upon the ability of the deceased to escape; and that it was competent to prove it by the testimony of persons of ordinary experience, it was not a question for experts. U pon perceiving the approaching- train the deceased leaped from the wagon, but was caught by the train. Defendant offered to prove that deceased was in the habit of driving with the reins about his body. Held, that the evidence was properly rejected; that negligence on his part could not be predicated thereon, as the act if proved, in no way tended to produce the collision and could not have been the proximate cause of the injury. It appeared that a hotel near the track obstructed the view. Evidence was offered and received under objection, that the premises on which was the house, had been purchased and was owned by defendant. It was conceded upon the argument by plaintiff’s counsel, that it was not the duty of the company to have removed the house on acquiring title, and that the evidence was useless. Held, that the evidence was not clearly harmless, but might have influenced the jury, and upon this ground alone judgment was reversed. James F. Starbuck for the appellant. F. W. Hubbard for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for reversal and new trial. All concur. Judgment reversed.