Page:Federal Reporter, 1st Series, Volume 8.djvu/503

 SCHOFIBLD V. CHICAGO, M. St ST. P. BT. 00. 489 �dered for plaintiff upon his evidence now in, the court would set it aside upon motion as being contrary to the evidence ; and it is to be judged by the same rules that woold prevail upon the consideration of sueh a motion after verdict. Let us inquire, then, whether, up- on the evidence, the question of contributory negligence is fairly open for the consideration of the jury, and may be decided either way within their discretion. The undisputed facts upon which defendant bases this motion are the following : �(1) The plaintiff was familiar with the crossing; had often passed it, and the usual sign, printed in large letters over it, gave express warning to per- sons on the highway to "look eut for the cars." (2) At the place of crbssing, the highway and railroad are nearly on a level, and for a distance of at Jeast 600 feet before reaching the crossing the plaintiff had a full view of the re^il- road from the depot to the crossing, a distance of 70 rods, and for a distance of about 33 feet. upon coming to the track, he could see beyond the depot, a distance of some 20 rods. (3) If at any time after the train passed the depot the plaintiff had looked in that direction he would have seen it, and If not then too near the train for escape, by stopping his horse he could have avoided the accident and in jury. That these facts, standing alone, show contrfoutory negligence on the part of plaintiff, is too plain to admit of doubt «r argu- ment. �But there is evidence tending to esiablish other facts, and these, for the purposes of this motion, must be taken as established. Being so regarded, the plaintiff claims that they authorize a verdict in his favor notwithstandiBg the facts and circumstances above enumerated. These latter facts are as follows : �(1) The train was not a regularone, and no train was due at the time of the accident. (2) The train was moving at. an unusual and dangerous rate of speed. (3) The train did not stop at the depot as trains usually do, but not always. (4) There was no signal by blowing the whistle or ringing the bell after the train passed the depot. �Of course, these facts are not found, but they are assumed to be found for the purposes of this motion, because anything, if there is any testimony tending to establish it, must be taken as established upon a motion of this character. These iacts, if established, would clearly show negligence on the part of the defendant, and I therefore assume, for the purposes of this motion, that such negligence is established. This however, does not of itself necessarily authorize a verdict for the plaintiff. If there was mutual fault — if both plaintiff and defendant were guilty of negligence — then, unlessthe defendant acted wantonly, there can be no recovery. Both parties were bound to exercise such care as under ordinary circumstances would avoid dangjerj'Such care: ��� �