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Railroad companies-Negligence-Street Crossings-Gatemen.

1. Where a railroad company uses the tracks of its road across a generally traveled public street in a populous town or city, for its convenience in the switching of trains, cars and locomotives, and the crossing is thereby rendered exceptionally dangerous, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing, and should, in the exercise of such care, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen, or gates and gatemen, at such crossing, or adopt other equally adequate measures for that purpose.

2. A railroad company which, in operating the road with the company owning the same, under an agreement to pay the latter a specified sum, yearly, in excess of the amount to which it is entitled out of the joint earnings, for the use of its tracks and the cost of switching, uses the tracks at such crossing where gates and gatemen are maintained, is bound to the same care in the use thereof as the company owning the road, and should anticipate the reasonable effect of the gates, and the gatemens' conduct in their management, on persons approaching the crossing or about to cross, and operate the road at that place, having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under those circumstances; and if, while so using the tracks of the road it accepts the services of the gatemen employed by the company owning the road, instead of employing gatemen of its own, they become, for the time being, its servants, for whose negligence it is responsible; and if it does not accept their services, its duty is to place competent gatemen at such crossing, and is responsible for its omission to do so.

3. When gatemen are maintained at such crossings, it is their duty to observe the tracks and know when, on account of trains or engines thereon it becomes dangerous for persons to cross, and when it is so, to close the gates and keep them closed to prevent persons from going upon the tracks so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the gateman in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are

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Railway Company v. Schneider.

open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.

(Decided May 1, 1888.)

ERROR to the Circuit Court of Hamilton County.

On the 10th of September, 1881, Henry Schneider, while driving his team over the railroad tracks across Freeman street in the city of Cincinnati, was killed by a locomotive run, managed, and operated, by the Cleveland, Columbus, Cincinnati and Indianapolis railway company. His widow, Mary Schneider, was appointed administratrix of his estate and brought her action in the superior court of Cincinnati against the railway company, under the statute, for damages, avering that his death was caused by the negligence and wrongful conduct of the company's servants, and that he was without fault.

The answer controverted all the allegations of the petition except that the defendant is a corporation under the laws of Ohio.

The plaintiff obtained a verdict for six thousand dollars, but, upon the hearing of a motion for a new trial filed by the defendant, consented to remit two thousand dollars and accept judgment for four thousand dollars. The motion was thereupon overruled and judgment entered accordingly. A bill of exceptions was duly taken purporting to set out all the evidence, the charge of the court to the jury, certain instructions requested by the defendant which were refused, and certain other instructions requested by the defendant which were given. One of the grounds of the motion for a new trial was misconduct on the part of the plaintiff in the action, upon which affidavits were read by both parties, which affidavits are by reference made part of a seperate bill of exceptions taken on the overruling of the motion.

Railway Company v. Schneider.

The railway company prosecuted error to the district court, and at the April term, 1885, the circuit court affirmed the judgment of the superior court, and the reversal of those judgments is now sought in this court.

The errors relied on relate to the charge of the court, its refusal to give in charge the instructions requested, and misconduct of the plaintiff in the progress of the trial. Such further statement with reference to them as is deemed material will appear in the opinion.

Mathews, Holding & Greve and H. H. Poppleton, for plaintiff in error.

1. The court erred in refusing to give the first instruction as requested by the plaintiff in error.

Tucker v. Duncan, 4 Co., 64 Mo. 484.

A railway track is a place of danger, and must be approached as such by one traveling a highway which crosses it, and he is negligent who fails to approach it as a place of danger. If the defendant in error approached the crossing on a trot or at such speed as to be unable to stop his horses before getting upon the track he did so at his own peril of being injured by collision with the engine, and the jury should have been so charged. Glendening v. Sharp, 22 Hun, 78; Haring v. N. Y. & E. R. Co., 13 Barb. 9; Woods, 652; Fletcher v. A. & P. R. A traveler who drives upon a railroad track without taking that precaution to ascertain if a train be approaching which the character of the crossing makes necessary to avoid injury, is guilty of negligence in law, although the servents of the company may have been negligent in the management of the train, and the traveler, in his confusion and in the excitement of the moment, rushed more heedlessly into greater peril. Chicago & N. W. R. Co. v. Hatch, 79 Ill. 137; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Schofield v. C. M. & St. P. R. Co., 8 Fed. Rep. 488; Murray v. P. R. R. Co., 31 La. Ann. 490; Tully v. F. R. Co., 134 Mass. 499; Wheelwright v. B. & A. R. Co., 135 Mass. 225; Ormsbee v. B. & P. R. Co., 14 R. I. 102; N. O. & N. G. R. Co. v. Mitchell, 52 Miss. 808; Parker v. W. & W. R. Co., 86 N.

Railway Company v. Schneider.

C. 221; Mahlen v. Lake S. & M. S. R. Co., 49 Mich. 585; Spencer v. U. & S. R. Co., 5 Barb. 337; Allyn v. B. & A. R. Co., 105 Mass. 77; Kelley v. H. & St. J. R. Co., 75 Mo. 138.

It is fatal to a right of action if a traveler approach a railway crossing at such speed as to be unable to stop his horses before getting upon the track. Grippen v. N. Y. Cent. R. Co., 40 N. Y. 34; Grows v. M. C. R. Co., 67 Me. 100; Mantel v. C. M. & St. P. R. Co., 33 Minn. 62; Brown v. M. & St. P. R. Co., 22 Minn. 165; Salter v. U. & B. R. Co., 75 N. Y. 273.

If deceased forgot to look until he got too near to avoid the injury, that fact will not excuse his want of care in driving upon the track on a trot. B. & O. R. Co. v. Whitacre, 35 Ohio St. 627.

In review of the evidence that the deceased drove upon the track on a trot, the first request to charge was warranted and it was error to refuse it. Wilds v. H. R. R. Co., 24 N. Y. 443; Little Miami R. Co. v. Wetmore, 18 Ohio St. 134; Salter V. U. & B. R. Co., 75 N. Y. 273; Heileman v. N. P. R. Co., 49 Pa. St. 63.

2. The gateman was not the servant of the defendant either by contract or by operation of law, but we stand ready to admit that if it were a duty of the plaintiff in error to place a flagman at that street crossing to warn the deceased of the approach of the locomotive which caused the injury, then the flagman of the C., H. & D. R. Co. was for that purpose the servant of plaintiff in error and for his acts it is responsible.

But, au contraire, if there were no duty upon the part of defendant to place a flagman at that crossing, the absence of a flagman was no omission of duty, and, consequently, not negligence on its part, and it is not responsible for the acts of the hired servant of the C., II. & D. R. Co. in doing that which it did not authorize, or in failing to do that which he was by his master directed to do. Cooley on Torts, 659. There was no statutory duty to place a flagman at that crossing, but there is a common law rule which renders it incumbent upon the plaintiff in error to exercise that care and prudence in the management of its trains which is commensur

Railway Company . Schneider.

ate with the danger of injury to others, to be reasonably apprehended. But if that rule was satisfied by a proper and careful management of its engines, it is not to be held responsible because it did not go further and notify deceased it was doing so. and it is not to be left to a jury to say that it was its duty to place a man at the crossing to notify deceased to be careful.

The common law does not impose upon railroad companies, while operating their trains with due care upon their railroad tracks, the duty of warning, by signals or means other than those prescribed by positive statute, persons crossing such track. Beisiegel v. N. Y. Cent. R. Co., 40 N. Y. 9; Grippen v. N. Y. Cent. & II. R. R. Co., 40 N. Y. 34.

The C., H. & D. R. Co. undoubtedly had the right to station a flagman at Freeman street to warn travelers, if it so desired; but it was a precaution voluntarily assumed and could be abandoned at any time. And, as was said by Welles, J., in Skelton v. L. & N. W. R. Co., L. R. 2 C. P. 631 : A mere failure to perform a self-imposed duty is not actionable negligence."

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The C., H. & D. R. Co. had exclusive control of the flagman, and defendant is not liable for his acts. Sprague v. Smith, 29 Vt. 426.

The plaintiff in error is not liable for the negligent acts of the C., H. & D. R. Co. Fletcher v. B. & M. R. Co., 1 Allen, 9; Clymer v. C. R. Co., 5 Blatchf. 317.

3. The court erred in refusing to give the third instruction to the jury as requested.

It was in hypothetical form and conformed to the suggestion of the court in Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 678, and did not assume the existence of the fact that deceased could have seen the engine when twenty-five feet distant from the track on which it was running, but left it to the jury to say whether he could or could not have seen it at that distance, and whether or not if he had, it was in time to have enabled him to avoid the injury he received.

It appeared by the testimony that if the deceased had looked he might have seen the engine at a much greater distance than the request assumed. In many cases where facts such as these

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