Flemming v. W. Pac. R.R.

By the Court, Crockett, J.: The action is for damages-alleged to have been occasioned to the plaintiff’s wagon and team through the negligence of the defendants’ servants and agents. While crossing the defendants’ railroad track, at a regular crossing, the wagon and team were struck by the engine of an approaching train, and three of the horses were killed and the wagon damaged. There was no contradiction in the evidence in chief as to certain prominent facts in the case. It was established by evidence in chief of this character: 1st. That immediately preceding the collision the plaintiff was driving his team of four horses, attached to the wagon, along the county road, which, for the distance of a mile, at that point, runs nearly parallel to the railroad track, and at no place within that space is distant from it more than two or three hundred yards, the distance growing gradually less as it approaches the crossing, at which point there are only a few feet between them. 2d. That the plaintiff was driving along the county road, in the direction of the crossing, [256]with the intention to cross the track at that point, and was perfectly familiar with the crossing, having passed over it on that morning and many times before. 3d. That the county road at that point was then extremely dusty, and there was little or no wind blowing, in consequence of which the dust raised by passing vehicles was not soon drifted away, but remained for a considerable time before it settled or was dispersed. 4th. That a short distance in front of the plaintiff, as he approached the crossing, and going in the same direction, were two other wagons and teams, which, together with his own, raised a cloud of dust which was so dense that he could not see the railroad track, nor even the fences along the county road, which were but a few feet distant. 5th. That the plaintiff’s horses were trotting until he approached within about twenty-five yards of the crossing, when he reduced them to a walk, and continued that gait until he got upon the crossing, at which point there was a sharp, shrill whistle from the approaching engine which was near at hand, and, his horses becoming frightened and» unmanageable, were struck by the engine almost immediately after the whistle. 6th. That while in motion, the plaintiff’s wagon and team produced considerable noise, calculated to obstruct his hearing; that the plaintiff did not stop his team to listen whether a train was approaching, but did listen “purposely” for that object while the team was in motion, and heard nothing to indicate the approach of the train. 7th. That for the distance of a mile before reaching the crossing there was nothing except the dust to hinder any one traveling the county road from seeing a train on the railroad. 8th. That on that trip the train was somewhat behind the regular time for passing the crossing. The evidence on these points was wholly uncontradicted; but, as usual in' such cases, there was considerable contrariety in the evidence on the question whether the engineer gave the proper or any signal as he approached the crossing. At the trial the defendant moved for a non-suit, which was denied, and an exception taken. A verdict and judgment having been rendered for the plaintiff, the defendant moved for a new trial, which was denied, and hence this appeal.