THOMA.8 v. DETJANARE, LACKAWANNA
&
WESTERN R. CO.
729
in contruvers;7 here. It should not have any weight whatever with as herein stated, and you will deteryou. The matters in issue you, and by the promine them according to tbe rules nlJW ponderence of evidence. The burden is on the plaintiff to establish every material fact, as hereinbefore declared. The jury returned a verdict for plaintiff.
THOMAS, Adm'x, etc., v. Tn DELAWARE, LACKAWANNA & WESTERN R. Co. (Circuit Oourt, N. D. New York. September 1,1881.) 1. RAn,RoADs-PRIVATE CROBBINGs-NEGLIGENCE.
Instructions that although there was no statutory obligation which required the railroad company to ring a bell when approaching a private crossing, the jury might find it was negligence to omit to do this when running at a high rate of 8peed, at a time when the view of the train was so obstructed by carson a side track as to render the use of the crossing peculiarly hazardous; that a railroad company ordinarily has the right to run its trains at any rate of speed it thinks proper, but that the condition of the crossing might impose somerestrietions upon this right, and, under the circumstances, the jury might predicate upon excessive speed; that one using such crossing must use all his faculties to ascertain whether or not he could do so safely; that one has the right to assume that the company would use more than ordinary care in approaching a crossing so obstructed.-lteld, to be unexceptionable. Held, allo, that evidence was properly admitted to show how long the empty freight cars had been allowed to stand on the side track prior to the occurrence of the accident.
Spriggs c1; Mathews, for plaintiff. J. D. Keman, for defendant. WALLACE, D. J. The points raised by the defendant on itp motion for a new trial are not well taken. The instructions to the jury fully and ,correctly presented the law of the case. The plaintiff's intestate was killed while crossing the railroad track of the defendant at a private crossing where he had a right to be, and in regard to which the defendant was charged with the duty of exercising reasonable care for the protection of those entitled to use it. The evidence authorized the jury to find that the defendant was guilty of negligence in running its special train at lit furious rate of speed across a crossing which it had obstructed by its freight oars, so that the view of an approaching train was intercepted, without ringing the engine bell or making other signal of approach. The deceased was not a trespasser, or mere in the use of the
739
FEDERALREI>O'RTER.
crossing. He had as much right there as the defendant Md. The crossing was a private road, which eoxisted before the railroad was constructed, for the use of the farm which the railroad divided, and for the use of tenants and the 'factory. The Hind of the defendant was servient to the easement which :ihi'sroad constituted. The rights and obligations of the deceased- and the defendant, the one towards the other, were the same as though its crossing were a public highway, except the defendant was not required to make the statutory highway signals. The jury were instructed tliat, aJthough there was no sta,tutory obligation on the part of the defendant to ring a bell upon approaching this crossing, they might find it was negligence to omit this when running at a high rate of speed, at a time when the -view of the train was so far obstrncted by the cars which had been permitted to remain upon the side-track as to rendlilr tlie use of the crossing peculiarly hazardous; The jury were also instructed that the defendants ordinarily had the right to maintain such, a rate of speed a,s it might think proper, but that the condition of the crossing, for which the defendant was responsible, might impose some restrictions upon this right, and, under thecITcumstances,the jury might predicate negligence upon excessive speed. Upon all the facts it was left to the jury to ,determine whether the defendant failed to observe that measure of care which would be incumbent upon a prudent and intelligent individual' under like circumstances. 1.'hese imltructions were as favorable as the defendant had any right to insist. Railroad corporations may ordinarily maintain such rate of speed with their trains as they see fit. They may even permit their officers to enjoy the luxury of special trains, and dash over their roads with a single car almost noiselessly and at lightning speed. They may use their side-tracks near the -intersection of highways or private roads for the storing of empty cars. While these things may not be agreeable to the general public, they are,nevertheless, within the privileges with which railroad corporations have been invested; and the public have no right to complain, because they are legitimately within these privileges. But when these privileges come in collision with the rights of those who use the highways or private roads to cross the railroad, they must give way; because, as to these persons, the rail. road corporation is under theobliga.tion of exercising reasonable care to prevent injury. What is reasonable care, or, conversely, what omission of precaution
THOMAS V. DELAWA.RE, LACKAWANNA It. WESTERN R. CO.
73'1
is negligence, can only be defined by general propositions,the appli. cation of which must depend upon the circumstances of the particular case. In Continental Improvement Co. v. Stead; 95 U. 8. 161, it is stated tnat travelers upon a highway which crosses a railroad, and the railroad company, have mutual and reciprocal duties and obligations, and although the train has the right of way the same degree of care and diligence in avoiding a collision is required from each of them; and that the degree of diligence to be used on either side is such as a prudent man would exercise, under the circumstances of the case, in endeavoring fairly to perform his duty. In this case the court approved the ruling of the court below, that the amount of care required of the railroad company depended. on the risk of danger, and tha,t when the view was obstructed 80 that parties crossing the railroad could not see an approaching train, that the latter should approach the crossinf{ at a less rate of speed, .and use increased diligence to give warning of their approaoh. The authorities of like import are too numerous and unanimous to need citation. The case of GordeU v. N. Y. C. R. Co. 70 N. Y. 119, however, deserves a reference; because, while asserting the same gen· eral propositions, it is also to the effect that although there is no statutory requirement to ring a bell or sound a whistle at a farm crossing, it does not follow that the omission to do so, when the crossing is obstructed, is not a circumstance to be considered in determining the question of negligence. The case was also fairly presented to the jury upon the issue of the negligence of the deoeased. They were instructed that it was inoumbent upon him, before attempting to oross the track, to use all his faculties to asoertain whether or not he could do so s8,fely, and that he was held to that measure of care and prudence which would have been exercised by an intelligent and careful man under the same circumstances. Notwithstanding the testimony of the defendant's witnesses, the jury were at liberty to draw the inference that owing to the obstructions the deoeased did not see the approaohing train, anp that owing to the noise of the factory he did not hear it. The absence of any fault upon the of the deceased may be inferred from the circumstanoes in connection with the ordinary. habits, oonduot, l}nd motives of men. The natural instinot of self-preservation in the case of a sober and prudent man stands in the place of posi. tiveevidence. Johnson v. Hudson River R. Co. 20 N. Y. 65.
782
FEDERAL REPORTER o
It was correct to instruct the jury that he had a right to assume the defendaut would use more care, in view of the obstructed condition of the crossing, than ordinary. The law will never hold it imprudent in anyone to act upon the presumption that another in his conduct will act in accordance with the rights aud duties of both. Newson v. New York Cent. R. Co. 29 N. Y. 383; Liddy v. St. Louis R. Co. 40 Mo. 507; LanghoiJ' v. Milwaukee, etc., R. Co. 19 Wis. 515; Hegan v. Eighth Avenue R, Co. 15 N. Y. 383; Pennsylvania R. Co. v. Ogier, 35 Pa. 60, 72. But assuming that the deceased saw the approaching train 60 rods from the crossing, as he was preparing to cross, it would have been error to instruct the jury, as requested, that he was guilty of contributory negligence if he did not stop to see if he could cross safely just as he emerged upon the track from behind the empty car upon the side-track. Kellogg v. N. Y. C. R. Co. 79 N. Y. 72. The jury were at liberty to find, if the train had been approaching at ordinary speed, there was ample time for the deceased to cross in safety. As the result proved, if the train had been running at 20 miles an hour instead of 40, indisputably there would have been ample time. It·is not negligence per se to cross a track in front of an approaching train. When there is ample time, it is the daily practice of prudent men to do so.' Where a person crosses in plain sight ofa train and is struck, there is an irresistible inference of fact that there was not sufficient time to cross, because the proximity of the train can be measnred at every step takep. by the pedestrian, in such a case it would, be proper to rule that the defence of contribntory negligence is established. Such was the case in Railroad Co. v. Houston, 95 U. S. 697; and this latter proposition was charged in the present case. It is urged the court erred in permitting the plaintiff to show how long the empty freight cars had been permitted to stan<i upon the side-track prior to the time of the accident. Undoubtedly the material inquiry was as to the condition of things at the time the accident took place, and the jury were very explicitly instructed to this effect. The fact elicited was treated simply as part of the history of the case, and was not prejudicial to the defendant. This point cannot avail the defendant. Judgment ordered for plaintiff.
NAT. BANK OF WINTERSET V. EYRE.
788 others.
NAT. BANK OF WINTERSET 'V. EYRE and
(Circuit Oourt, D. IO'UJa. July 16, 1881.) L SET-OJ'1I'8-ATTORNEYB'LIENs-JUDGMENTB. An attorney's lien upon a judgment is subject to any existing right of in the other party to the Buit.
In Equity. On the thirtieth of April, 1880, complainant recovered a judgment 10 the circuit court of Madison county, Iowa, against respondent Robert Eyre; for the sum of $2,877. On the twenty-first of October, 1880, the said respondent Robert Eyre recovered judgment in this court against complainant for the sum of $287.12. On the first of November, Wainwright & Miller, attorneys for Robert Eyre, filed their notice under the statute, claiming an attorney's lien upon the last-named judgment for the full amount thereof. Execution having been issued upon the last-named judgment, complainant files this bill alleging the foregoing facts, and prays that proceedings under the same be enjoined; and that the right of set-off be decreed. Respondents demurto the bill. McOaughan, Dabney ct McCaughan, for complainant. Parsons ct Runnells and Wainwright ct Miller, for respondents. MCCRARY, C. J. The right of set-off exists under the statute unless it is defeated by the attorneys' lien, claimed by Wainwright & Miller. Code of Iowa, 1873, § 3097. The statute is declaratory of the common law and of the general principle of equity, according to which mutual judgments will generally be set off the one against the other. 2 Eq. Jur. § 1437. Before the respondent EYcl'e obtained his judgment against the bank he was indebted to the bank on a judgment of over $2;800. The bank pleaded this judgment as a set-off against his claim in the suit of Eyre against the bank 'in this court, but a demurrer to that p,art of the answer was sustained, upon the ground that mutual judgments are to be set off the one against the other after their rendition. Can the right of set·off be defeated by the filing of an attorney's lien? I think not. If Eyre had assigned his entire claim before judgment to Wainwright & Miller, and they had sued on it, I think it clear that the assignment would have been subject to the set-off previously held by the bank. The claim was not negotiable, and the assignees would have taken it subject to any defence existing in the hands of the bank. Surely no greater right can be acquired by the filing of an attorneys' lien than would have resulted from such an assignment. I think the weight