
    HORAN v. BOSTON & M. R. R.
    (Circuit Court of Appeals, First Circuit.
    January 19, 1911.)
    No. 902.
    Railroads (§ 320) — Injury to Person at Crossing — Negligence in Operation of Train.
    As a general proposition, a locomotive engineer is not chargeable with negligence for not stopping his train because he sees a' foot traveler approaching the track at a crossing in the daytime, as, in the absence of exceptional situations, the justifiable assumption would be that the foot traveler would see the train and that he would not walk in front of an approaching engine.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1015; Dec. Dig. § 320.]
    On petition for rehearing.
    Denied.^
    For former opinion, see 183 Fed. 559.
    Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
    
      
      For oilier cases see same topic & I number in Dec. & Am. Digs. 1907 to date, & Itep’r Indexes
    
   ALDRICH, District Judge.

The petition for a rehearing is denied. It is true that the second ground stated in the petition for a rehearing was not expressly discussed in the opinion, and it was because it was not considered that the record reasonably raised any question in respect to the defendant’s want of care after discovering the plaintiff’s proximity to the railroad track. As a general proposition, it is palpable that there is no warrant for saying that a locomotive engineer should stop his train because he sees a foot traveler approaching the track at a crossing. In the absence of exceptional situations, the justifiable assumption would be that a foot traveler in daylight would see the train and that he would not walk in front of an approaching engine. .

The other point taken in the petition, that the opinion states “that then the plaintiff walked diagonally across part of the street toward the track, and then, still without looking, diagonally across the track,” when in fact he had not reached the track, is grounded upon verbal error. The statement, in the opinion, is in substance accurate, and would have been strictly accurate if it had concluded, “and then still without looking started diagonally across the track,” or “diagonally toward the track.” Either would have been an accurate description of what occurred, and the statement in the opinion is in substance sufficiently accurate because the point against the plaintiff is based, not necessarily upon the idea that he was on the track, but upon the idea that, without looking for an approaching train, he walked diagonally toward the track, and to a point at or near the track where he was struck by the engine. As it appears that he was walking with his back partly to the, approaching train, and that he walked, without looking, to the point where he was struck by the engine, it matters little whether his diagonal course had taken him onto the track, or only to a point so near the track that the engine struck him.

It appearing that no one of the jitdges- who concurred in the judgment desires a rehearing, the petition for rehearing is denied, and mandate may issue forthwith.  