Page:Federal Reporter, 1st Series, Volume 8.djvu/506

492 FEDEBAIi BEPOBTEB. �" Was no excuse for negligence on her part. Slie was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an ap- proaching train, and not to walk carelessly into a place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she oinitted to use tlieui and walked thought- lessly upon the track, she was guilty of culpable negligence and so far con- tributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendants." �Upon the authority of these cases I am bound to hold that the fail- ure of the engineer to give the oustomary signais of the approach of the train did not relieve the plaintiff from the duty of looking back at least as far as the depot before going upon the track. This brings me to the only remaining question in the case : Was the velocity of the train so great that if the plaintiff had used ordinary care and caution he would have been unable to prevent the accident ? Ordi- nary prudence required the plaintiff to look for a coming train before proceeding so near the track as to be unable to prevent a collision. If one drives bis horse so near the track as to be in danger from a pass- ing train, he cannot excuse himself upon the ground that he was un- able, after looking, to escape unhurt. He must look out in time to avoid a train, if one is approaching, provided always that there is a clear view, so that he is not deprived of the means of looking. But it is said that he could not see the approaching train beyond the de- pot unless he looked at a distance of 32 feet from the crossing. This is true ; but the distance to the depot was 70 roda, and, even if the train was moving at the extraordinary speed of 50 miles an hour, it must have passed the depot when the plaintiff was at least 100 feet from the crossing, While a train running at 50 miles an hour is traveling 70 rods, a horse, even if walking, would travel at least 100 feet. It is highly improbable either that the train was moving at that speed, or that the horse, on a severely cold day, would move at a slow pace. But, giving the plaintiff the benefit of every doubt, it remains manifestly true that the plaintiff, when within 100 feet of the crossing, might have seen the train coming from the depot, and might have avoided the accident Ijy stopping until it passed by. �It is of the utmost importance that the rules of law governing this question of negligence on the part of employes of railroads, as well as on the part of the traveling public, should be thoroughly understood and rigidly enforced. Pailroada are being rapidly conatructed m ��� �