Passman v. West Jersey & S. R. R

direction, toward the crossing, saw the deceased just before the accident standing with his bicycle at the door of the office where he was employed, talking with some one. This witness proceeded on his way towards the crossing, and when between the empty cars, or on approaching the lower track, seeing the regular evening express of the defendant company coming at a high rate of speed on the southerly or incoming track, turned and shouted to the deceased to warn him of the danger, and then tried to "grab" him, and, if possible, prevent by force his proceeding in front of the train. In this he was unsuccessful. He says the deceased was almost upon him when he turned; was riding on his bicycle at a moderate rate of speed, and going directly in front of the train, by which he was struck and instantly killed.

It was contended by the counsel of the plaintiff that the empty cars left on the side track obstructed the view of the incoming train; that the cutting of this train of empty cars was an implied invitation to the public and to the plaintiff's intestate that the tracks could be crossed in safety; and also that none of the statutory signals were given by the defendant of the approach of its train, and therefore it was liable in damages for his death. No negligence, however, on the part of the railroad employees, would excuse the plaintiff's intestate from exercising reasonable and ordinary care in approaching this crossing, which was a place of obvious and known danger, so that his failure to observe such care would preclude the plaintiff's right of recovery. The cutting of the train was not an invitation to cross without exercising reasonIt was only for the purpose of furnishing an opportunity to those who might desire to cross while using the ordinary prudence required by the law under the circumstances apparent from the condition of the crossing. The absence of the statutory signals did not justify the deceased in assuming that it was safe for him to cross. He should have used reasonable care for his own preservation, and, failing therein, he cannot shift the sole responsibility upon the company. If by taking ordinary care he could have avoided the danger, his failure to do so negatives the plaintiff's right of recovery. One cannot recover for the breach of duty of another when he is lacking in ordinary prudence himself.

The respective rights of railroad companies and persons attempting to pass over their tracks at regular crossings are reciprocal. The company has the right of way. It must, however, give the statutory signals of the approach of its trains. A person about to cross a railroad track on a highway is presumed to know the danger, and, while he may reasonably expect to be warned by the prescribed signals of an approaching train, he cannot justify himself in risking the danger unless he has exercised the senses nature has given to protect him from harm; and he must exercise such faculties in the manner that an ordinarily prudent person would exercise them under similar circumstances. The greater the diffi

Chesapeake & O. Ry. Co. v. Riddle's Adm'x

culty of discovering the danger, as apparent from the surroundings, the greater is the care required; and, if the circumstances are such that one sense is rendered less reliable, the others must be used to a correspondingly greater extent. As early as 1854, in Moore v. Central R. Co., 24 N. J. Law, 268, Justice Potts, in speaking for the Supreme Court, said, "I am certainly of opinion that the plaintiff was bound to show that he used all ordinary care, all reasonable caution, to avoid the collision." This was a crossing case. The plaintiff was seriously injured. On the trial he did not prove any negligence on the part of the defendant, or the exercise of ordinary prudence on his own part. This case was before the Supreme Court on a rule to show cause, and was afterwards affirmed by this court, on a writ of error, in 24 N. J. Law, 824, wherein Justice Haines said the court intended to adopt the principle laid down by the Supreme Court. Negligence is a fault, and will not be presumed against either litigant in the absence of proof. Pennsylvania R. Co. v. Middleton, 57 N. J. Law, 154, 31 Atl. 616, 51 Am. St. Rep. 597. The proper caution to be exercised before attempting to pass over a railroad crossing has been clearly defined in this state by a large number of decisions. A few only are cited here: Haslan v. Morris & Essex R. Co., 33 N. J. Law, 147; Pennsylvania R. Co. v. Righter, 42 N. J. Law, 180; Central R. Co. v. Smalley, 61 N. J. Law, 277, 39 Atl. 695; Green v. Erie R. Co., 65 N. J. Law, 301, 47 Atl. 418.

The plaintiff's intestate in this case was riding on a bicycle -a vehicle propelled by his own power, over which he had personal control. The general rule to be applied requires a bicyclist, on approaching a railroad crossing, where the view of the track is in any way obscured, to dismount, or at least bring his wheel to such a stop as will enable him to look up and down the track and listen before attempting to cross; and, while his acts may vary in certain details, the law requires of him practically the same reasonable care as is required of a pedestrian. Robertson v. Pennsylvania R. Co., 7 Am. & Eng. R. R. Cas. (N. S.) 605.

The deceased was guilty of contributory negligence. There was no error in the order directing a verdict for the defendant, and the judgment thereon should be affirmed.

Pleading.

CHESAPEAKE & O. RY. Co. v. RIDDLE'S ADM'X.

(Court of Appeals of Kentucky, Feb. 18, 1903.)

[72 S. W. Rep. 22.]

Where defendant demurred to plaintiff's reply, it was proper to carry the demurrer back to the first paragraph of defendant's answer, and sustain the same as to it, if insufficient.

Action in Federal Court-Effect of Dismissal.

That plaintiff brought her action originally in the United States

court, and thereafter dismissed the same without prejudice, was no bar to an action subsequently brought by her for the same cause in the state court.

Pleading-Amendment.

Where a petition of an administratrix to recover for the death of her intestate alleged that he was a resident of the county in which the suit was brought at the time of his death, an application at the trial to file an amended answer denying intestate's residence, after the introduction of certain evidence raising a doubt as to intestate's residence in that county, was properly refused for lack of diligence.

Accident at Crossing-Reputation for Sobriety.

In an action against a railroad company for killing plaintiff's intestate at a crossing, evidence of intestate's general reputation for sobriety was inadmissible.

Same--Signals- Evidence.

Where a railroad track, at the point where plaintiff's intestate was killed, was used by two different companies, the admission of evidence that after the accident witness crossed the track at that place, and listened for a whistle or bell, and heard none, and did not perceive or hear the train until he was within 20 feet of the crossing, was prejudicial error.

Same-Degree of Care--Instructions.*

In an action for the killing of plaintiff's intestate at a railroad crossing, an instruction that the duty of both parties as to care was reciprocal, it being defendant's duty to exercise such care as to signals, speed, and lookout as might be expected of ordinarily prudent persons operating a railroad under like circumstances, and the duty of plaintiff's intestate to use such care as might be expected of an ordinarily prudent person, situated as he was, to learn of the approach of a train,— and, if the crossing was especially dangerous, it was incumbent on both parties to exercise increased care, commensurate with the danger, was proper. Appeal from circuit court, Woodford county.

"Not to be officially reported."

Action by Mary Riddle, administratrix of Clabe Riddle, against the Chesapeake & Ohio Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed. Wallace & Harris and Jno. T. Shelby, for appellant. Burton Vance and S. E. Blackburn, for appellee.

BARKER, J. On the 24th day of February, 1899, Clabe Riddle, in company with Erasmus Breeden, while driving along the Frankfort & Lexington Turnpike Road in a buggy, at a point where the highway intersects with the track of the Louisville & Nashville Railroad Company, near Ducker's Station, in Woodford county, Ky., was run into, and instantly killed, by appellant's train of cars which was being operated over the Louisville & Nashville Railroad Company's track, at said point under a contract with the said Louisville & Nashville Railroad Company. Whereupon his mother, Mary Riddle, was appointed, by order of the Scott county court, administratrix of his estate, and, as such administratrix, instituted an action against appellant in the United States district court for the district of Kentucky for said injury, claiming damage in the sum of $10,000. Afterwards, by leave of *See foot-note appended to Chicago, B. & Q. R. Co. v. Roberts (Neb.), 6 R. R. R. 277, 29 Am. & Eng. R. Cas., N. S., 277.

Chesapeake & O. Ry. Co. v. Riddle's Adm'x

said United States district court, she dismissed said action without prejudice, and then instituted this action in the Woodford circuit court, to recover for said injury the sum of $2,000. Her petition sets out the facts of the killing of Clabe Riddle, and charges that his death was caused by the negligence of appellant's servants operating said train. Appellant's answer sets up as a defense, first, the institution by appellee of her action in the United States district court, as a bar to her right to prosecute this action in the state court; claiming, in substance, that, by reason of the institution of the action in the United States district court, it had obtained jurisdiction of the case, and the same could not be tried in the state court, for want of jurisdiction. Said answer also denies negligence upon the part of its agents and employees, and pleads that the death of appellee's intestate was the result of his contributory negligence. This was put in issue by the reply. Appellant filed a demurrer to appellee's reply. The demurrer was carried by the court back to the first paragraph of appellant's answer, which sets up the want of jurisdiction in the Woodford circuit court, by reason of the fact that the action had first been instituted in the United States district court for the district of Kentucky, as aforesaid, and said first paragraph was dismissed; and thus the issues were finally made up. Upon the trial of the case a verdict was rendered by the jury in favor of appellee in the sum of $2,000. Appellant's motion for a new trial having been overruled, the case is here on appeal for a review.

We think that the lower court did not err in carrying the demurrer back to the first paragraph of appellant's answer, and dismissing said paragraph. The case of Cox v. The East Tennessee, V. & G. Railroad Co., 68 Ga. 446, and Baltimore & Ohio Railroad Co. v. Fulton, 59 Ohio St. 575, 53 N. E. 265, 44 L. R. A. 520, established the doctrine that where an action is instituted in the state court, and is removed by the defendant to the United States court under the act of congress regulating such procedure, thereafter the plaintiff cannot deprive the defendant of his right to a trial in the United States court, either by dismissing without prejudice, or by so acting as to force the court to nonsuit him; but there is a wide distinction between that proposition and the one at bar. When the defendant exercises his right, under the act of congress, to remove the action against him to the United States court, he thereby, as said before, acquires a right to have the case tried by that court, and of this right it is not in the power of the plaintiff to deprive him. The defendant, having set in motion the law of removal, acquires vested rights, and confers upon the United States court a jurisdiction which cannot be devested by any act of the defendant. But no such reason exists where the plaintiff goes herself into the United States court with her cause of action. When she so goes, her standing there is precisely the same as it would have

Chesapeake & O. Ry. Co. v. Riddle's Adm'x

been in the state court, had she first instituted her action therein; and there is no principle of law or procedure which requires that her standing, under these circumstances, should be different in the two courts. We think she clearly had the right to dismiss her action in the United States court without prejudice, by permission of the court; and, having done so, she was free to bring it in any other court she chose, which had jurisdiction.

Pending the trial in the Woodford circuit court, appellant offered to file an amended answer denying the residence of Clabe Riddle in Scott county, and denying the jurisdiction of the Scott county court to appoint appellee administratrix of the estate of her son. This motion was based upon certain answers which were made by appellee on the witness stand, conveying to appellant, for the first time, a doubt as to the residence of Clabe Riddle in Scott county. The motion to file this amended answer was overruled by the court, and we think properly. The trial of the case had begun, and the court very naturally concluded that the question of Clabe Riddle's residence was as open to investigation at the hands of appellant before the trial as any other fact set up in the petition as a basis of appellee's cause of action; and there was no more reason why it should accept as true the allegation that Clabe Riddle lived in Scott county than for it to accept as true any other allegation in the petition; and, if it was true that Clabe Riddle had not lived in Scott county, a little diligence on the part of appellant could have discovered it before the trial. That fact may have been more obscure than some other facts in the case, but it was open to investigation, none the less.

During the trial of the case, appellee was permitted to introduce evidence, over the objection of appellant, as to the general habits of her intestate for sobriety. On this point, Capt. James Blackburn was allowed to testify that he was a perfectly sober man, and that he had never seen him take a drink in his life. This evidence was introduced in anticipation of evidence subsequently introduced by appellant that, at the time he was killed, decedent had about him a strong odor of whisky, and that on the day before he was killed he had, in company with Erasmus Breeden, purchased three pints of whisky. We do not think it was competent for appellee to introduce any evidence tending to show the general reputation of her decedent for sobriety. This evidence would not meet or elucidate the question as to whether or not the decedent was sober at the time he was killed, as a man may generally keep sober, and yet at some particular time in his life be drunk or under the influence of whisky.

Mr. Robert B. Franklin was allowed to testify for appellee that, long after the accident in question, he had crossed the railroad track at the place where Clabe Riddle was killed; that he had listened for a railroad whistle or bell, and heard none,