Whelan v. New York, L.E. & W.R. Co.

Decision Date19 February 1889
Citation38 F. 15
PartiesWHELAN v. NEW YORK, L.E. & W.R. CO.
CourtU.S. District Court — Northern District of Ohio

A. W Jones, R. B. Murray, and W. S. Anderson, for plaintiff.

S. E Williamson and Hine & Clarke, for defendant.

WELKER J., charged the jury, among other things:

1. That it was the duty of the defendant, having placed across the street near its crossing a gate under the care of its flagman, as a reasonable precaution for the safety of persons passing over its track at the crossing, to close down the gate at times when its cars, trains, or engine were passing over the street crossing, and along its track, in order to make it reasonably safe for persons so passing. That it was the duty of defendant when about to pass over the street track to give such reasonable and proper warning, by ringing of the bell or blowing of the whistle, of its intended crossing of the street, and to pass over the crossing at a reasonably safe speed. Failing to exercise such care would be negligence to the extent of such failure.

2. The gate being open, the car-driver had the right to suppose the track was clear, and was safe to cross, and was guilty of no carelessness in passing through the gate towards the crossing without stopping at the gate to look or listen for a passing engine.

3. It was not carelessness in the driver of the street-car, after passing the open gate, and immediately before crossing the track, to stop and look and listen for approaching engine, or to ascertain whether there was danger in proceeding across if in so doing he exercised ordinary prudence or care in attempting to cross the track and avoid injury. That if, in so stopping and listening and looking, he discovered the engine approaching at a dangerous speed, or in close proximity to the crossing, it was, in the face of such danger, negligence on the part of the driver to attempt to cross the track.

4. That the plaintiff at the time was only a passenger in the car. He had, nor could have had, no control in the management of the car,-- of its stopping or going on; and not in a situation to himself look out for, or prevent, danger in crossing the railroad track. I direct you, therefore, that if the evidence shows no fault of omission or commission in the conduct of the plaintiff or negligence on his part contributing to his injury, the negligence of the driver, if guilty of any negligence, cannot be imputed to the...

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14 cases
  • St. Louis, Iron Mountain & Southern Railway Co. v. Tomlinson
    • United States
    • Arkansas Supreme Court
    • July 6, 1901
    ...under duty to look and listen. 3 Ell. Railroads, §§ 1171, 1157; 29 A. 258; 118 Ind. 305; 1 Exch. 21; 122 N.Y. 234; 96 N.Y. 676; 80 Me. 430; 38 F. 15; 45 Oh. St. 678; 175 Ill. 183; 10 Allen, 368; 24 Oh. St. 54 N.Y.S. 766; 64 Miss. 584. Appellant impliedly invited Tomlinson to pass over the t......
  • Kern v. Kogan
    • United States
    • New Jersey Superior Court
    • January 17, 1967
    ...399, 127 A. 558. N.J.L. 439, 168 A. 796 (E. & A.1933); Totten v. Pennsylvania R. Co., 11 F. 564 (U.S.C.C.1882); Whelan v. New York, L.E. & W.R. Co., 38 F. 15 (U.S.C.C.1889); Anthony v. Louisville & N.R. Co., 27 F. 724 (U.S.C.C.1886); Goble v. Delaware, L. & W.R. Co., Fed. Cas. No. 5,488A, 3......
  • Burns v. St. Louis Southwestern Railway Co.
    • United States
    • Arkansas Supreme Court
    • June 10, 1905
    ...114 Ga. 397. A city has the power to regulate the speed of trains running through it. 33 Ill.App. 78; 49 Ia. 282; 18 S.W. 1103; 84 Mo. 119; 38 F. 15; 49 Am. & Eng. R. Cas. 358; 28 Md. 522; 108 Mo. 525; 96 Mo. 290; S.W. 847. Greater care is to be exercised in the running of trains through ci......
  • Culbertson v. Metropolitan Street Railway Company
    • United States
    • Missouri Supreme Court
    • June 8, 1897
    ... ... Railroad, 80 Me. 430; Callahan ... v. Railroad, 52 Hun. 276; Whelan v. Railroad, ... 38 F. 15. (7) Respondent's instruction number 3 was a ... ...
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