Page:Federal Reporter, 1st Series, Volume 8.djvu/746

782 FEDBRA.Ii REPOUTBRo �It was correct to instruct the jury that he had a right to assume the defendant would use more care, in view of the obstructed condi- tion of the Crossing, than ordinary. The law will ne ver hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordanoe with the rights and duties of both. Newson v. New York Cent. R. Co. 29 N. Y. 383; Liddy v. St. Louis R. Co. 40 Mo. 507; Langkoff v. Milwaukee, etc., R. Co. 19 Wis. 515; Hegan v. Eighth Avenue R. Co. 15 N. Y. 383; Pennsylvania R. Co. v. Ogier, 35 Pa. 60, 72. �But assuming that the deceased sawthe approaching train 60 rods from the crossing, as he was preparing to cross, it would have been error to instruct the jury, as requested, that he was guilty of con- tributory negligence if he did not stop to see if he could cross safely just as he emerged upon the track from behind the empty car upon the side-track. Kellogg v. N. Y. G. R. Co. 79 N. Y. 72. The jury were at liberty to find, if the train had been approaching at ordinary speed, there was ample time for the deceased to ci'oss in safety. As the resuit proved, if the train had been running at 20 miles an hour instead of 40, indisputably there would have been ample time. Itis not negligence per se to cross a track in front of an approaching train. When there is ample time, it is the daily practice of prudent men to do 80. ' Where a person crosses in plain sight of a train and ia struck, there is an irresistible inference of fact that there was not sufQoient time to cross, because the proximity of the train can be measured at every step taken by the pedestrian, and in such a case it would be proper to rule that the defence of contributory negligence is estab- lished. Such was the case in Railroad Co. v. Houston, 95 U. S. 697; and this latter proposition was charged in the present case. �It is urged the court erred in permitting the plaintif? to show how long the empty freight cars had been permitted to stand upon the side-track prier to the time of the accident. Undoubtedly the mate- rial inquify was as to the condition of things at the time the accident took place, and the jury were very explicitly instructed to this effect. The fact elicited was treated simply as part of the history of the case, and was not prejudicial to the defendant. This point cannot ayail the defendant. �Judgment ordered for plaintifiF. ��� �