Hearn v. New York, Philadelphia and Norfolk R.R. Co.

Opinion by

Roberts, J.,

This was an action tq recover damages for injuries suffered by plaintiff at a railway crossing. Plaintiff’s evidence was to the effect that on the afternoon of December 23rd, 1897, he was driving, with his daughter, in a closed carriage, along a country road which crosses defendant’s tracks about half a mile from Salisbury; that upon approaching the tracks he brought his horse to a walk and looked and listened for trains, but saw none and heard no bell ring or whistle blow, and that as soon as he reached the track his carriage was struck by a train, the horse killed, and plaintiff and his daughter thrown out and rendered unconscious. There was other evidence on plaintiff’s part tending to show that no whistle was sounded before the train reached the crossing. The view of the track was clear for 1,500 feet from the crossing’in the direction of the approaching train. The defendant’s evidence was that the usual signal was given at the whistling-post and that the bell was rung before the crossing was reached, and that if plaintiff had really looked or listened he could not have failed to see and hear train in ample time to avoid the injury. Held, that the trial Court properly instructed the jury that there was no legally sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to recover.