Opinion
by the Court.The plaintiff below was awarded a verdict and judgment in the sum of $2,000 for injuries sustained by reason of a collision with the train of defendant at a highway crossing.
The grounds of negligence alleged in the declaration were that no signal was given of the approach of the train, that the train was otherwise negligently operated and that the right of way was obstructed by a heavy growth of weeds and bushes so as to shut off the view of one approaching the highway crossing.
The evidence is quite voluminous, and counsel have argued the case from their respective standpoints. It would take more time and space than is. thought necessary to state in detail or even in a general way the testimony as it appears in the abstract.
It is quite apparent to us that the great preponderance of the evidence is with the defendant on the question whether the proper signals were given of the approach of the train. Indeed, there is scarcely any room to doubt that they were given, hior is there sufficient proof of negligent management of the train in any other respect.
There was proof, however, that upon the right of way weeds and bushes had grown to such an extent as to greatly obstruct the view, and if the case turned upon this point the finding for plaintiff might stand.
But we think it is not the material question in the case. The accident occurred at night, and the presence of these obstructions was not very important. The signals being given, as they undoubtedly were, the plaintiff, had he exercised proper caution, would have known the train was approaching, and to the signals was added the noise and’ roar caused by passing over a long bridge, which ended some 200 feet or more beyond the crossing.
It js difficult to understand how the plaintiff could have failed to hear all this if he was duly sober and careful of his own safety. Unfortunately for him there is no little evidence that he was considerably under the influence of liquor which, if true, would account for his action.
It would seem that the plaintiff insisted before the jury that the weeds and bushes on the right of way obstructed the sounds of the approaching train, as well as the view, for we find in the instructions for plaintiff a suggestion, to that effect. There is no such allegation in the declaration and it seems unreasonable in the highest degree that the plaintiff was by such means prevented from hearing the train or its signals.
Such obstructions might obscure the view but would not prevent the passage of sound in any appreciable degree.
So far as the instructions contained such intimation they were misleading and erroneous. The first instruction was faulty in assuming or intimating that the plaintiff was guilty of but slight negligence in going upon the track when greatly under the influence of liquor and in failing to require as a.n essential element of the plaintiff’s case that he was in the exercise of ordinary care. Regarding the whole case as it appears in the record, we are of opinion that the court erred in refusing the motion for a new trial. The judgment will be reversed and the cause remanded.