Page:Federal Reporter, 1st Series, Volume 8.djvu/505

8CE0FIELD V. OHIOAaO, Ui & ST. F. BT. 00. 491 �(1) He could not reasonably assume that the train would certainly stop at the depot, since that was not the invariable rule. (2) Being warned that a train was approaching, and thus put upon his guard, there was the most co- geut reason for looking out, and it was heedlessness to neglect to do so. �A more difficult question is presented by the fact, which I assume is true, that no warning, by ringing the bell or blowing the whistle, was given of the approach of the train to the crossing. �Counsel for plaintiff insist that the neglect of the engineer to sound the whistle or ring the bell on nearing the crossing relieved the plain- tiff from the necessity of looking for the coming train before attempt- ing to cross, and he bas cited some authorities to sustain this view. If this were an open question in the federal courts I should feel bound to consider it very caref ully, as it is certainly one of importance, both to the railroad companies and the public. But in my judgment the question is settled adversely to the plaintiff by the decisions of the supreme court of the United States, by which I am, of course, bound. In the case of the Continental Improvement Co. v. Stead, supra, the supreme court say : �"On the other hand, those who are crossing a railroad track'ajre bound to exercise ordinary care and diligence toascertain whether a train is approach- ing. iliey have, indeed, the greatest incentive to caution, for their lives are iii imminent danger if a collision happens ; and hence it will not be presumed without evidence that they do not exercise proper care in a particular case. But, notwithstanding the hazard, the inflrmity of the human mind in ordinary meii is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them ; such, namely, as an ordinarily prudent man would exercise under the ciroum- stanees. When such is the case they cannot obtain reparation for their in- juries, even though the railroad company be in fault. They are tiie authors of their own misfortunes." �In the case of the Railroad Co. v. Houston, 95 U. S. 697, this pre- cise question was considered. It is true that in that case the person killed was crossing the track a short distance away from the public crossing, (about 70 feet from the public crossing, as the court find,) but it was conceded in the case that she was crossing on the public highway, and so the court considered the case in both aspects, and they distinctly say, assuming that she was not crossing on a highway, that the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from taking ordinary precautions for her safety. And the court fur- ther say that "negligence of the company's employes in these particu- Jars" — that is, in regard to the sounding of the whistle or the ringing of the bel! — /.! ��� �