Mearns v. Baltimore & O. S. W. R.

284 F. 31, 1922 U.S. App. LEXIS 2333

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 12, 1922
• Docket: No. 3076
• Status: Published

Opinions

ALSCHULER, Circuit Judge

(after stating the facts as above).

To justify the directed verdict the evidence must be such as to warrant no other conclusion than that (1) the accident was not caused by negligence of the company, or (2) negligence of the deceased contributed to the accident. Do the facts necessarily establish one or the other of these propositions ?

In the first is involved tlie questions: Did the company properly guard the crossing at the time of the accident? Ought the company to have given a signal of the intended starting of the train, and, if so, was a signal given, and, if given, was it under the circumstances shown to have been reasonably proper? Was the traveled part of the street so blocked by the train as to relieve the company of any duty of guarding the crossing or giving a signal before starting the train?

The second raises the queries: Did deceased know or ought he to have known the danger to himself in attempting to cross? Was he warned of the danger of attempting to drive across, and was the warning such as ought to have deterred a reasonably prudent man from crossing the track? Was the street at the crossing so obstructed by the train that a reasonably prudent man would not then have undertaken to cross? Did deceased before driving on the track take such precautions to avoid accident as, under like circumstances, a reasonably prudent person would have taken?

Bearing on , all these questions there appears a conflict of evidence, and as to none of them can it be said there was no evidence tending to support the cause of action.

We therefore conclude it was error to direct the verdict, and the judgment is accordingly reversed, and the cause remanded for another trial.