
    BALTIMORE & POTOMAC RAILROAD CO. v. CARRINGTON.
    Practice; Negligence; Contributory Negligence; Railroads; Evidence.
    1. A verdict for the defendant at the close of the plaintiff’s testimony should only be directed when but one reasonable view can be taken of the evidence and of its every intendment, and that view is utterly opposed to the plaintiff’s right to recover.
    2. The question of negligence in a damage suit, is one of law 'for the court only where the facts are such that all reasonable men must draw the same conclusion.
    3. Contributory negligence is not presumed to exist in any case, and must be proved by the defendant, unless it necessarily appears in the making out of the plaintiff’s case.
    4. In an action for damages for the death of plaintiff’s intestate caused by his having been run over by a railroad train at a crossing, it will not be presumed, in the absence of testimony on that point, that the decedent failed to look and listen before he attempted to cross the tracks.
    5. Where a railroad company has maintained a gate at a crossing for a number of years, although not required by law to do so, persons using the crossing constantly have the right to assume that no trains are coming when the gate is up.
    6. That there was a gate at the time of the accident and that it was the constant practice to lower it when trains were about to pass, and that it was not lowered on that occasion, are facts proper for the jury to consider to determine whether or not the decedent was guilty of contributory negligence.
    7. Testimony to show that a gatekeeper at a railroad crossing was asleep two hours and a half before an accident at the crossing, is admissible as tending to show that he was asleep at the time of the accident.
    No. 241.
    Submitted February 20, 1894.
    Decided April 2, 1894.
    
      Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, holding a law term, on a verdict in an action for damages.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This is an action by appellee, Campbell Carrington, as the administrator of Francis Godfrey, deceased, to recover damages for injuries inflicted by appellant, which resulted in his death.
    Deceased was the owner and driver of a hack, and engaged in carrying passengers daily between the terminus of the H street car line and the village of Bennings. He made a number of trips each way daily along Bennings Road, which is crossed by defendant’s railway about 300 yards from the village.
    There were four railway tracks crossing the road at grade. A gate had for years been maintained by the railway company across the road and next to the track on the Washington side. There was a watch box near for a watchman, whose business it was to lower the gate or bar just before trains passed. The “hack” was a covered wagon, with a seat running along each side, and another across the front where the driver sat. It was drawn by one horse. About half-past 8 P. M., on December 14, 1889, deceased was returning from the street railway terminus in Washington, with five passengers in his wagon, one of whom sat with him and the others on the seats inside. As the wagon reached the second track it was struck by an express train, which was running about fifty miles an hour. This train was twenty minutes late. Godfrey and three of the passengers were killed, and the two others were injured. Godfrey was 62 years old, and left a widow with four children, one of whom was a boy of twelve, another a girl of four, while the others were over 21 years of age.
    William Brown, a witness for plaintiff, said that he was a passenger in the hack at the time of the accident, and sat upon one of the side seats. He said: “ Just as we got about twenty yards of the watch box I got up and caught hold of the side of the wagon with my left hand and looked around, and looked up and down. I did not hear any noise and did not see any lights and did not see any man or anything, and said to myself, everything is all right and sat down; and I had no more than sat down before I felt a jar, and don’t remember anything more. * * * The gates were standing straight upwards.” Witness was a trackman working for the defendant at that time. The wagon did not stop before reaching the track. Witness heard no .one call “ stop,” and no voices at all. He said in his cross-examination : “ I did not notice any switches. I just looked at the gates and the watch box, and everything seemed to be so calm that I thought everything was all right and was satisfied.” He again described the manner in which he raised up and looked out. There was no curtain in front between him and the driver’s seat. He said: “I was paying more attention to listening than looking. I saw the gates were up, and thought everything was all right.” He saw no trains and heard no bell.-
    Richard Brandt testified that he was walking on the road to Bennings, and was overtaken and passed by the wagon of the deceased; that' he stopped for a minute at a blacksmith shop near the crossing. The wagon got a little way ahead and he heard a crash and hurried up to see what it was. He first saw the horse with a piece of one shaft hanging to him. Saw no wagon. He and Richard Pratt went to the watch box, and Pratt called John Richardson, the watchman, three times. He did not answer and they knocked on the door. He presently opened it and seemed rising from the . floor. He wanted to know what was the matter, and when told, wanted to know what train had done it. The gates were up and there were no lights. The horse was in a walk. Could see the wagon ahead. The blacksmith shop is about fifteen or twenty strides from the crossing, and not immediately on the wagon road. Witness turned back to the road, and then saw a headlight of a swiftly moving train pretty near the crossing, and then heard the crash. The train was making little noise and he heard no bell. He had moved about three strides when he heard the crash.
    Henry Yates testified for plaintiff. Was about 150 yards away; heard the crash, and ran to the place of the accident. He met Brandt there. Saw Godfrey’s dead body. Saw Richardson, the watchman,, come out of the box after he got there. Saw him walking about looking for a lantern. The following statement of this witness was objected to, and an exception was reserved to its admission: “ I don’t know how he (Richardson) happened to come out. When I went by at half-past 6 that night Mr. Richardson was lying in his box asleep, with his hands across his breast. I looked in the window and told him that there was a train coming by and to get up and flag it.” He further said, referring to the time after the accident, that the crossing gates were up.
    Other evidence was introduced, which related to incidental matters respecting the measure of damages, etc., which need not be stated. On the closing of plaintiff’s evidence, defendant moved an instruction to the jury to return a verdict in its favor, which was refused and an exception taken.
    Defendant called the watchman, John Richardson, who testified substantially as follows: Had been at the station for a number of years, and had attended the gates for some five to seven years. Was the night watchman. The watch box was very small, and had a small stove in it. Was not large enough to lie down in. It had a window on each side to look up and down the track, and the door faces the track. You could see about a mile one way and half a mile the other. Went on duty about 5 o’clock. Was not asleep at 6 or thereafter. Fixed his lamps and hung them on the gates as usual. His own lamp was hung up in the box. Was pouring some coal in the stove when he heard the train and rushed out. Saw them “ coming with this team, with their horses in a lope. He was running about all he could run. I hollered and took hold of the handle to raise the gates. I had to bend my knees against the gates to raise this latch up. It worked on a lever, and of course, only having one hand, I had to bend my knees against it to get it down. I saw that they were going to get on the crossing before I could get the gates down, and I said, ‘ Hold up, Mr. Godfrey/ * * * I hollowed to Mr. Godfrey, ‘ Hold up there; the train is coming, and you can’t make it.’ He started to pull his horses in, and there was a fellow sitting on the left side of him who struck the horse with an old leather whip twisted up, and he let out an oath and says, ‘ Let him go, we can make it.’ About that time the gates came right down about midway of the top on the wagon. I hollered, ‘ For God’s sake, stop/ two or three times pretty loud.” It is about twelve or fourteen feet from the gate to the second track. The horse got over before the collision. The hind part of the wagon was struck. Did not see Brandt or Yates. Wheelock and Marshall were the first persons seen. Saw Pratt afterwards. He did not take witness’s lantern. Denied positively the statements of Brandt and Yates as to his being waked and asking what was the matter, etc. A locomotive headlight coming on one side could be seen a mile and on the other a half mile away. The bell could be heard a quarter of a mile, and the noise of the train about the same distance. Heard that train whistle for this crossing and also for Deanewood, just before. There was nothing in the way to prevent the train from being seen. No cars standing near. It is about 250 yards from the blacksmith shop to the crossing. Cross-examined: Had no clock and no “ time table ” of the road. Trains run every fifteen or twenty minutes. Was not expecting this train any more than others. Does not know that the time of the express train was then 8.30 at that place. Generally sleeps in the daytime and watches at night. Was out rabbit hunting on that day with some friends, and did not return until 4 P. M. Went on duty about 5, or half after 5, and had not slept during the day. Several witnesses were offered to prove that Richardson was sober, or seemed to be, that afternoon and night. Some evidence was given tending to show that Godfrey had probably been drinking some.
    Richard Brandt was recalled by plaintiff in rebuttal, and said there was a train of freight cars on the track at the crossing, extending north towards Deanewood, with locomotive headed towards Washington, at the time of the collision. It extended north of the watch box. The object of this testimony apparently was to show an obstruction in the way tending to hide the coming train from the persons in the wagon, but it is not clear from the evidence to what extent it constituted an obstruction. There was some other rebutting testimony of an unimportant character.
    Exceptions were taken to certain parts of the general charge to the jury, as well as to a special instruction given on behalf of plaintiff, and the refusal of instructions asked by defendant. The second assignment of error is founded on these exceptions, and the necessary portions of the charge and special instructions given and refused are as follows:
    1. At plaintiff’s request the following was given: “In determining as to the liability of the defendant, the jury should take into consideration all the circumstances of the case, the darkness of the night, the speed of defendant’s train, the failure to lower the gates, if the jury find they were not lowered, and all the circumstances which occurred at the time of the accident as shown by the evidence both for the plaintiff and the defendant.”
    2. The special prayer of the defendant, refused, was that it would be the duty of Godfrey, if he knew the place was dangerous from having frequently driven across it, to stop, look and listen before attempting to cross, and if he failed to do so, the verdict must be for the defendant.
    3. After stating the case fully and impartially, and telling the jury that if they believed the evidence of Richardson, they must find for the defendant, because his warning by words and attempt at the same time to lower the gates were sufficient care, if true, the court said: “ On the other hand, if it be true, as claimed on the part of the plaintiff, that the watchman, whose duty it was to be on the alert for the approach of this train, was not attending to his duties, but was in his box, and the gates were not lowered, and the plaintiff was induced thereby to go upon the track, supposing it safe, then there would be a plain case of neglect on the part of the agent of the company, and a company is always responsible in consequence of its agent’s neglect, and the plaintiff would be entitled to recover, unless it further appears to you that the deceased, Godfrey, was also guilty of some further neglect.”
    It is to the foregoing remarks that the exception was taken. The court then charged, plainly and correctly, the rule as to contributory negligence by a plaintiff, and in further explanation of the act of negligence with respect to closing the gate, told the jury: “In this case, it is claimed on the part of the plaintiff that the omission of the watchman here to lower the gates, if that was the fact, was calculated to disarm the vigilance of the deceased, and to relieve him from exercising the same care that he would otherwise have been bound to exercise; in other words, that the fact that the gates being up was notice to him that the track was clear, and dispensed with the duty on his part of looking about for himself.” Then, after giving the reasons for his opinion, the court said: “ I am not able to see that any such rule can be laid down.” He then further told the jury that, “Notwithstanding the watchman may have been negligent, if Godfrey approached this track without pausing to listen or to look up or down the road, but carelessly and thoughtlessly drove directly upon the track, and if he might have averted the injury by looking — if he would have seen the train approaching by looking to the left — and thereby would have escaped the injury, it must be held that his neglect contributed directly to the injury,” and therefore plaintiff would not be entitled to recover. “ It is the duty of every man who approaches a railroad crossing, where everybody knows it is a dangerous point, to look out for himself, and exercise care and vigilance. He must listen and he must look. If he blindly drives upon' the road, without using any of these precautions, and if this led to his injury, he cannot recover damages.”
    The court also gave this special instruction requested by defendant: “ It was the duty of the plaintiff’s intestate, before he attempted to cross the railroad track at the time and place in question, to look both up and down the railroad for approaching trains, and also to listen for such trains; and if the jury shall be satisfied from the evidence that said Godfrey néglected to so look and listen, and that in consequence of such neglect said Godfrey was struck and killed, the plaintiff cannot be allowed to recover, and the verdict must be for the defendant.”
    The jury found for plaintiff, and judgment for $4,000 was rendered thereon. Motion for new trial was made and overruled. Defendant’s appeal has been duly prosecuted.
    
      Mr. Enoch Totten for the appellant.
    
      Mr. Irving Williamson and Mr. J. Coleman for the ap-pellee.
   Mr. Justice Shepard

delivered the opinion of the Court:

1. The practice, apparently so general, of moving the direction of a verdict for the defendant upon the close of the plaintiff’s evidence, in cases of this character, adds greatly to the responsibility as well as to the labor of the courts, and whilst proper enough in itself, should .only be indulged in cases where the duty of the court to take the case from the jury can be made to appear perfectly plain. The right to have the facts determined by the jury ceases only when but one reasonable view can be taken of the evidence and of its every intendment, and that view is utterly opposed to the plaintiff’s right to recover. The court below did not err in refusing the defendant’s motion in this case.

The facts are materially different from those passed upon by the court in R. R. Co. v. Houston, 95 U. S., 697. They more nearly resemble those in R. R. Co. v. Powers, 149 U. S., 43, which was a case where a person leaving a car at a station, and encumbered with baggage, was run down by a train while crossing the track.

In that case a motion was made to order a verdict for the defendant, on the ground of contributory negligence of the plaintiff, and denied. The court said:

“ It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this is whether the uncertainty arises from a ■conflict in the testimony, or because the facts being undisputed, fair-minded men will honestly draw different conclusions from them.”

In a later case in the same court, the plaintiff had first brought his suit in a State court and recovered a judgment, which had been reversed on appeal; he then took a nonsuit and brought his action in the Federal court, and on the trial therein the jury was instructed to find for the defendant. This judgment was reversed. Gardner v. R. R. Co., 150 U. S., 349. In reversing the judgment for this error, the court, speaking through the Chief Justice, said:

“The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion; or, in other words, a case should not be withdrawn from the jury unless the conclusion follows, as matter of law, that no recovery can be had upon any view that can be properly taken of the facts the evidence tends to establish.” See also R. R. Co. v. Maugans, 61 Md., 53.

Two different conclusions can be drawn by reasonable men from the evidence in this case. Assuming plaintiff’s ■evidence to be true, the defendant was clearly negligent in not closing the gate which barred the entry to the track. Had this gate been closed the accident could not have happened. The sole question, then, is whether the same evidence shows ■clearly that plaintiff was guilty of contributory negligence in such degree as to take away his right to recover for the result of the defendant’s negligence. It is not true that every fault or want of care on his-own part, preceding the receipt of an injury, will deprive the injured party of the right to recover therefor from the party inflicting it. The question, what shall constitute proper care in crossing a railroad track, or in any other place or moment of danger, cannot be considered and determined in the abstract and applied to all cases as they arise.

The existence of culpable negligence must necessarily depend upon the facts and circumstances of each particular case in which it is claimed. Contributory negligence is not presumed to exist in any case, and must be established by the defendant, unless it necessarily appears in making out the plaintiff’s own case.

The evidence in this case shows that the plaintiff’s intestate was driving a gentle horse, attached to a heavy wagon with five persons in it besides himself. Richardson, the watchman, said he was running as fast as he could, while Brandt, who was walking behind the wagon, says that the horse was in a walk. The plaintiff’s intestate did not stop his horse before driving on the track. He was instantly killed, and whether he actually looked and listened for the train is a fact the proof of which died with him. If the presumption cannot be indulged as matter of law that he did look and listen, it cannot certainly be indulged that he did not. Whilst it may be said that ordinarily a man, before crossing a railway track, should stop as well as look and listen for approaching trains, there is no rule of law that he shall always do so. There is no law which required the defendant to keep a gate at this crossing and a man to lower it before the passage of trains; but having done so for a series of years, persons using the crossing constantly would have some right to suppose that no trains were coming when the gate was up. Warner v. R. R. Co., 45 Barb., 299. The fact that there was a gate, and that it was the constant practice to lower it when trains were passing, or about to pass, and that it was not lowered on this occasion, was one proper to be considered by the jury in determining the question of the contributory negligence of the plaintiff’s intestate. Casey v. R. R. Co., 78 N. Y., 518 ; Ernst v. R. R. Co., 39 N. Y., 61 ; McGrath v. R. R. Co., 63 N. Y., 522; R. R. Co. v. Yundt, 78 Ind., 373 ; R. R. Co. v. State, use of Hauer, 60 Md., 449; Dolan v. Canal Co., 71 N. Y., 285.

In the last case, a flagman was customarily present .to give notice of coming trains. The party attempted to cross in a wagon; some cars obstructed his vision on the side the train came from; the flagman was not there, and he drove onto the track without stopping. The court held that negligence could not be imputed to him as matter of law, but was for the jury to determine, and affirmed a judgment for the plaintiff.

In Glushing v. Sharp, 96 N. Y., 676, the party attempted to cross in a covered milk wagon which he drove. He looked down the road once some distance from the track and saw no train. The gate was up. Had he stopped a'second time nearer the track he could have seen the train in time to save himself, but he did not do so. The judgment for the plaintiff wás affirmed, the court saying: “The raising of the gate was a substantial assurance to him of safety, just as significant as if the gateman had invited him to come on, and that any prudent man would not be influenced by it is against all human experience.”

In Warner v. R. R. Co., 45 Barb., 299, the Supreme Court of New York in general term went so far as to approve an instruction to the jury, in a case where the flagman was absent when the party attempted to cross, that the public would have a right to suppose that no trains were coming when he was absent.”

In Bank v. Morgolofski, 75 Md., 432, the plaintiff, seeing the door of the elevator shaft open, and it being quite dark inside, supposed the elevator was there, and stepping in fell down the opening. He recovered a judgment, which was affirmed on appeal. The court held it was a case for the jury and said: “ It is not contributory negligence not to look for danger when there is no reason to apprehend any.” See also R. R. Co. v. Dunn, 78 Ill., 197, which was a case where a party was killed in crossing a railway track on foot when the flagman was absent.

This very question has been decided by the Court of Queen’s Bench in England, in a case which was twice appealed. Wanless v. R. R. Co., L. R. 6 Q. B., 481. In that case the wagon gate was open and fastened back and two boys entered it on foot and started to cross the track. As they were about to step on the track a freight train passed rapidly, which they escaped. Just as the last car passed them they stepped across, and while on the next track were run down by a train coming from the other direction. Held, that it was a case for the jury. Kelly, C. B., said: “ It is the opinion of the majority of the court that it was the duty of the defendant to keep these gates across the road shut when any trains were expected to pass, and that they should be left open when no trains were expected; and that whenever the gates, or either of them, are left open, it is an intimation to the public who may have to pass along the railway, either upon foot or with carts and carriages, that they can pass in safety.” Bramwell, J., alone dissented. Stapley v. R. R. Co., L. R. 1 Exch., 21, which holds to the same effect, was cited with express approval.

It is not at all necessary to go to the full extent of the doctrine announced in all of the above cited cases in order to sustain the refusal of the court to take the case from the jury and direct a verdict for defendant.

2. After what has been said above, it is hardly necessary to discuss the error assigned upon the instructions given and refused. The court gave the instruction asked by defendant as to the duty of the deceased to look and listen before attempting to cross, but refused that which added thereto the duty to stop at the same time. Whether the failure to stop was negligence under the circumstances, was properly submitted to the jury to be considered with the other facts of the case. It was also for the jury to consider whether he probably did or did not look and listen, and if he did not, whether it would have availed him to do so. The witness Brown, who was riding in the wagon, testified that he, just before reaching the track, raised up and looked out; seeing and hearing nothing, he sat down, thinking everything was safe; and immediately afterwards the collision occurred. The train was a delayed express, traveling at least fifty miles an hour. Another witness had said there was a freight train which might possibly have obstructed the vision until too late. - Along with these circumstances, it was unquestionably proper for the jury to consider the probable effect of the condition of the gate at the time upon the action of Godfrey as he approached the crossing. But in this connection, as we have seen, the court stated and expressly denied the plaintiff’s contention that the failure to have the gates lowered “was notice to him that the track was clear and dispensed with the duty on his part of looking about for himself.” The charge of the court was as fair to the defendant as it had any legal right to expect, and we can find no error in it.

3. The evidence of the witness Yates to the effect that he had found the defendant’s gatekeeper, Richardson, asleep in his box at about 6 o’clock on the night of the accident, was admissible.- Whether this man was asleep, some two and a half hours later, was, as we have seen, a material fact in the case. That he had previously gone to sleep at his post was relevant to that issue. In a case analogous to this, it has been held that it was admissible to show that the flagman had been drinking some time before th^ accident. Warner v. R. R. Co., 45 Barb., 299. We are aware of no principle under which this evidence could be excluded.

After a careful consideration of the record and arguments, we can find no error in the proceedings below; and the judgment must be affirmed, with costs. It is so ordered.

Judgment affirmed.  