Cobleigh v. Grand Trunk Ry.

• Decision Date: 27 June 1896
• Citation: 75 F. 247
• Parties: COBLEIGH v. GRAND TRUNK RY.
• Court: U.S. District Court — District of Vermont

75 F. 247

COBLEIGH v. GRAND TRUNK RY.

United States Circuit Court, D. Vermont.

June 27, 1896

C. A Hight and A. A. Strout, for the motion.

Elisha May, opposed.

WHEELER District Judge.

The plaintiff was driving his two-horse team, not afraid of trains, on a squally day in the fall, along a highway towards, and, in fair weather, in plain sight of, the defendant's road and station at Stratford Hollow, N.H about a third of a mile away, and heard a station whistle beyond, as of a train approaching. He soon reached a turn from the station, in the highway, about 200 feet, which he estimates at about 100 feet from the crossing, and, according to his evidence, stopped there, and looked for the train till he concluded it had stopped at the station, which was at the time somewhat obscured by driving snow. He thought he could easily pass the crossing before the train could start up, and reach it; and the whistling post, at which he might expect the train would give signals if it came, was between the station and the crossing. Relying upon his conclusion, without looking further for a train, he drove along onto the crossing, and was struck by a fast train, which had not stopped at the station, nor, as has been found, given any signals for the crossing, and was seriously injured. The jury, upon instructions to find for the defendant if the signals were in fact given, or there was contributory negligence, have found for the plaintiff; and the defendant has moved to set aside the verdict, as contrary to the instructions, and against the evidence, upon the issue, well made by the pleadings, as to contributory negligence. The argument in support of the motion rests upon the assumption that, upon the evidence, the existence of contributory negligence was so clear that the jury could not, without passion or prejudice, find but for the defendant.

That a person should, before crossing a railroad, look out for trains, and that the omission of doing so is, ordinarily, so contributory to being hit as to prevent a recovery for that is now elementary. Here the plaintiff, if believed, did look and listen for the train before crossing, but was mistaken in supposing that it had stopped at the station. In going on, his view would be from it, and towards the railroad, in the other direction, where he should also look. If it had stopped, as he supposed, he would not need to look for it further, for it could not possibly...