NORTHERN PAC. RY. CO. v. ANDERSON et ux., 199 F. 735

WOLVERTON, District Judge (after stating the facts as above). [1] The first question insisted upon by counsel for defendant is that the court erred in permitting the plaintiffs to show that the alleged obstruction to the view of the railroad track from the public road had long subsequent to the accident been cut away by the railroad company. There was some evidence to that effect allowed to go to the jury, but it was neither offered nor received as an implied admission of the defendant’s negligence in relation to the injury sustained by the plaintiffs.

The first evidence of the kind was in relation to a photograph of the location offered by plaintiff, and it was to explain the photograph as compared with the condition at the time of the accident. And again, De Clark was cross-examined as to whether he had not cut the brush away in October — after he had said as much in his examination in chief. The trial court carefully charged the jury at the time that the fact that the railroad company may have cut the brush away after the-accident was not material, and could have no bearing, directly or indirectly, except to explain in some manner the photographs taken.

So that the court very carefully guarded the point at issue, and committed nq error in the respect complained of. It is next contended that the trial court should have instructed the jury, as a matter of law, that the plaintiffs were not entitled to recover. The contention seems to be based upon two theories.

One is, assuming that the obstruction to the vision existed, as plaintiffs claim, preventing them from seeing an approaching train from the north until within a few feet of the track, then that plaintiffs were guilty of contributory negligence in not observing ordinary care and precaution in approaching the crossing. The track being obscured, it is urged that greater care would be required of the plaintiffs than if it were in plain view; in other words, that the care required to be observed is in proportion to the danger to be anticipated.

It is undoubtedly true that travelers upon the public highway, approaching a railroad crossing where passing trains are to be expected, are required to use their senses, of both seeing and hearing, to detect the approach of such trains, and that, when the track is obscured to the sight, greater care is devolved upon them in the use of their sense of hearing, because the capacity for detecting the danger has been diminished.

In listening, they must be so disposed as probabty to listen effectively; otherwise, still greater care should be observed by not venturing upon the track until it is ascertained that it will be clear —especially if trains are passing frequently. Chicago & N. W. Ry. Co. v. Andrews, 130 Fed. 65, 73, 64 C. C. A. 399; Chicago, M. & St. P. Ry. Co. v. Bennett, 181 Fed. 799, 104 C. C. A. 309. Alderson- and wife- say that the railroad track was obscured, by trees, brush, and weeds, from near the east end of the bridge in the roadway to within 10 or 12 feet of the track.

That imposed upon them the precaution of stopping within a short distance of the track and listening for an approaching train. They say, also, that they could see the track from the little hill beyond the bridge, and again as they came off the bridge, and that at each of such points they looked both ways to ascertain if a train was approaching the crossing. Alderson knew the train passing south was late on its

schedule time, which enjoined upon him special care, because anticipating that it might be along at any moment. Having passed beyond the range of view from near the bridge, both Alderson and Mrs. Alderson say they stopped within 20 to 25 or 30 feet of the track and listened for a train; hearing none, they drove upon the track. Dwinn.ell testifies that they stopped, he thinks, about halfway between the bridge and the track; that he turned to walk in a different direction, and that almost immediately he heard the short whistles, and then came the collision.

Stopping from 20 to 30 feet from the track would seem to be not too great a distance to listen effectively for the train; the noise of the wagon and clatter of the horses’ feet having ceased. It does not appear that there were any other noises to drown the rumbling of the train.

Alderson and wife having sworn that they stopped within that distance from the track, although in a measure contradicted by Dwinnell, it was for the jury to determine as to their credibility, and, furthermore, to determine, under proper instructions, about which there is no controversy, whether they used ordinary care, such as- a person of ordinary prudence would exercise, in approaching and attempting to cross the railroad track at the time.

We think, under the testimony, the care and prudence with which Alderson and wife approached the track before driving upon it was clearly a question for the jury, and it was not error for the court to leave it to them. This as it respects counsel’s theory of an obstructed vision. Counsel’s other theory is that plaintiffs’ view of the railroad track looking northward, from whence the train was approaching, was not obstructed at all for a distance of from 30 to 45 feet from the track, and that it was sheer negligence for them to drive on the track when they could readily have seen the moving train.

It is argued with much earnestness that the series of photographs introduced by the defendant proves beyond controversy the situation of an unobstructed view, and therefore that a verdict for defendant should have been directed by the court. A scrutiny of these photographs would seem to indicate that there was an unobstructed view of the track, as claimed. Pictures, however, in themselves, like maps and diagrams, prove nothing without the human equation behind them. Says Mr.

Wigmore: “We are to remember, then, that a document purporting to be a map, picture, or diagram is, for evidential purposes, simply nothing, except so far as it has a human being’s credit to support it. It is mere waste paper — a testimonial nonentity. It speaks to us no more than a stock or a stone. It can, of itself, tell us no more as to the existence of the thing portrayed upon it than can a tree or an ox. We must somehow put a testimonial human being behind it (as it were) before it can be treated as having any testimonial standing in court.

It is somebody’s testimony or it is nothing.” 1 Wigmore on Evidence, § 790. p. 893. And likewise the court, in Baustian v. Young, 152 Mo. 317, 323, 53 S. W. 921, 922 (75 Am. St. Rep. 462), in speaking of the probative effect of photographs, says: “They are of the same character of evidence as diagrams and pictures drawn by hand; not, necessarily carrying the same degree of probative force, but still of the same character; not in themselves evidence at all, hut representing to the eye what the witness declares, was the real appearance of the thing at the times he saw it.

Diagrams, drawings, and photographs are resorted to only because the witness cannot, with language, as clearly convey to the minds ol' the court and jury the scene as the light printed it on the retina of his own eye at the time of which he is testifying.” In order to understand the photographs perfectly, it is necessary to get the viewpoint of the photographer, his distance from the scene, and the direction in which the instrument was looking; and it is here that the “human being’s credit” supplements the picture.

So we have, as a factor for the jury’s consideration, the credibility of the witnesses who took or assisted in taking the pictures. And there is yet to be considered, along with these pictures and tHe human testimony that qualifies them as evidence, the testimony of other persons on the ground at the time, who observed as well the physical facts and their. credibility. The plaintiffs, and several others corroborating them, say that the track was obscured up to within 10 or 12 feet of it.

The witnesses behind the photographs say that it was not obscured for a distance of some 30 to 45 feet from it as one approached on the public road; and thus is presented a direct and irreconcilable conflict in the testimony. Such a case is generally, if not always, a proper one for the jury. It is not an unreasonable inference, deducible from some of the defendant’s witnesses, that but one. whistle was sounded by the engineer, which was the alarm signal, and that the collision came very soon thereafter.

If the team had been sighted by the engineer, as he testifies, it would seem that he would have sounded a warning much sooner. In this there is some corroboration of the plaintiffs’ testimony upon the subject. Upon the whole testimony, we are of the opinion that the case was properly submitted to the jury. Affirmed.