Page:Federal Reporter, 1st Series, Volume 8.djvu/743

 THOMAS V. DELA^TABB, LACKAWANNA & WESTERN E. CO. 729 �in coutroversj here. It ehould not have any weight whatever with you. The matters in issue are as herein stated, and you will deter- mine them according to the rulea now given you, and by the pro- ponderence of evidence. The burden is on the plaintiff to establish every material fact, as hereinbefore declared. The jury returned a verdict for plaintiff. ���ThomaBj Adm'x, etc., v. The Delawabb, Laokawanna & Wbstbbn �B. Co. �(Cireuit Court, N. D. New York. Beptember 1, 1881.) �1. RAn^ROADS— Phivate Cbossings— Negligence. �Instructions that although there was no statutory obligation which required the railroad company to ring a bell when approacbing a private crossing, the jury might find it was negligence to omit to do this when running at a high rate of apeed, at a time when the view of the train was so obstructed by cars on a side tracli as to render the use of the crossing peculiarly hazardous ; that a rail- road 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 some restric- tions upon this right, and, under the circumstances, the jury might predicate negligence 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, — lield, to be unexceptionable. Hdd, alto, 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 ac- cident. �Spriggs dt Mathews, for plaintiff. �J. D. Kernan, for defendant. �"Wallace, d. J. The points raised by the defendant on itf motion for a new trial are not well taken. �The instructions to the jury fully and correotly 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 a 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 licensee, m the use of the ��� �