Imágenes de páginas

"Q. Whether or not you ever had any conver- | Appeal by Frederick Stellar from a judg. sation with them about paying the sum of $4,- / ment rendered against him by a justice of 500 in addition to the $500? A. At one time, with Mr. Whitney, my partner; and I told Mr.

the peace in favor of Eugene Long. On moRundle at the time he demanded the $500 that tion to dismiss the appeal on the ground that Mr. Whitney and I should pay the $4,500, and the certificate of the justice to the transcript he advised me not to."

of the record filed did not meet the requireHe admits that he did not advance the ments of section 3987, Revised Code of 1915. $4,500, and that the plaintiff never had title Lewis v. Hazel, 4 Har. 470; Barker v. David, or an option on the property. It is evident | 4 Pennewill, 395, 55 Atl. 334; Peninsula Cut that Mr. Stilkey was led to believe that he Stone Co. v. Nixon, 3 Boyce, 339, 83 Atl. could procure an option on the property for 1081. The certificate was as follows: a small sum. He says he first offered $100, "I hereby certify that the within is a true and finally offered the $500, and was refused. transcript of all my entries in the above case.

Mrs. Carrie M. Brown, one of the principal As witness my hand and seal,” etc. witnesses for the plaintiff, testified:

Counsel for appellant contended that the "That Mr. Stilkey repeatedly asked Mr. Bo- certificate was sufficient, relying upon Mar. land if it was possible to carry the deal through, I shall y. Reed. 5 Pennewil. 462. 61 Atl. 945. and he said positively no." It is admitted that the defendants made no

CONRAD, J. We overrule the motion to tender of the purchase price at any time be

dismiss the appeal, holding that the court, fore or on June 1, 1914, and no request was

in Marshall v. Reed, 5 Pennewill, 462, 61 Atl. made for a deed of the property.

945, virtually covered this point. The case is here for our determination upon so much of the evidence as is legally admissible. We have carefully examined the

(6 Boyce, 145) evidence, and the admissions of counsel, and, | NAILOR Y MARYLAND. D. & V. RY. CO. applying thereto well-settled rules of law, | we are of the opinion that the plaintiff is not

(Supreme Court of Delaware. April 24, 1916.) entitled to recover.

11. RAILROADS 335(5)-INJURIES ON TRACK Upon the vital question of its own readi -CONTRIBUTORY NEGLIGENCE. ness and ability to perform its obligations as Where the negligence of a party killed set out in its declaration, there is not only an

while crossing a railroad track was the proxi

mate cause of his death, his widow is not entientire absence of testimony showing its abili. | tled to recover of the road, no matter how negty to perform the same, but it admits over ligent it may have been. and over again that it had neither option nor! (Ed. Note.-For other cases, see Railroads, title to the property, and could not procure

| Cent. Dig. 88 1028, 1084; Dec. Dig. Ow335(5).) the same. The rule is well established that

2. APPEAL AND ERBOR 930(1)-PRESUMPin such cases the plaintiff, on his part, must


In determining, on appeal from judgment show that he was able, ready, and willing to for plaintiff, whether decedent, killed by a railperform as he has declared in his writ. The road, was negligent, that testimony must be acplaintiff here has not brought itself within cepted as true which is most favorable to plain

tiff. the rule, and the entry must therefore be:

[Ed. Note.-For other cases, see Appeal and Judgment for the defendants.

Error, Cent. Dig. 88 3755, 3756, 3758; Dec.

Dig. 930(1).] (6 Boyce, 144)



QUESTION FOR JURY. (Superior Court of Delaware. New Castle.

In an action against a railroad for the

death of a party killed when the automobile he Jan. 28, 1916.)

drove ran into a train at a crossing, whether JUSTICES OF THE PEACE 164(2)-APPEAL

the deceased could or could not have seen the RETURN.

train in time to avoid the accident was a quesOn appeal from a judgment of a justice of

tion for the jury. the peace, his certificate to the transcript of

(Ed. Note.-For other cases, see Railroads, the record filed, “I hereby certify that the within

Cent. Dig. § 1170; Dec. Dig. Om 350(17).) is a true transcript of all my entries in the above 4. RAILROADS 350(17)-INJURIES AT CROSScase, as witness my hand and seal,” etc., was ING - CONTRIBUTORY NEGLIGENCE - QUESsufficient.

TION FOR JURY. (Ed. Note,-For other cases, see Justices of the In such action whether, by the exercise of Peace, Cent. Dig. 88 614-618; Dec. Dig. Om proper care, decedent could have heard the train 164(2).]

had he listened was a question for the jury. Action by Eugene Long against Frederick

| (Ed. Note. For other cases, see Railroads, Stellar. Judgment for plaintiff before a jus

Cent. Dig. $ 1170; Dec. Dig. Om 350(17).] tice of the peace, and defendant appeals.

5. RAILROADS 350(13)-INJURIES AT CROSSMotion to dismiss appeal overruled.


JURY. Argued before CONRAD and HEISEL, JJ. Whether decedent's running his automobile Reuben Satterthwaite, Jr., of Wilmington,

at 10 miles an hour was negligence contributing

proximately to cause his death was for the jury. for appellant. Franklin Brockson, of Will Ed. Note. For other cases, see Railroads, mington, for respondent.

"Cent. Dig. $ 1166; Dec. Dig. 350(13).)

6. RAILROADS 334-INJURIES ON TRACK-| travelers on the highway, up to a point a few CONTRIBUTORY NEGLIGENCE-SUDDEN PERIL. feet distant from the railroad tracks; that the

Where a highway traveler, without fault defendant company did not give due and timeon his part, is suddenly placed in a position ly notice or warning of the approach of its of imminent peril at a railroad crossing, the train to the crossing and by reason of the delaw will not hold him negligent if he does not fendant's negligence in this respect, the autoselect the wisest course or do the safest thing; mobile and train collided, and as a result of all that is required of him being that he act with the collision David B. Nailor was killed. due care under the circumstances.

The plaintiff also claims that, at the time of (Ed. Note.--For other cases, see Railroads, the collision, David B. Nailor was exercising Cent. Dig. § 1027; Dec. Dig. 334.] proper care and caution in looking for the rail7. RAILROADS Om 350(31)-INJURIES ON TRACK

road crossing and in all other respects.

The defendant company denies that the colli-CONTRIBUTORY NEGLIGENCE-SUDDEN PER

sion was caused by any negligence or want of 1-QUESTION FOR JURY. In an action against a railroad for inju. I claims that at the time and place of the acci.

care on the part of its servants. The defendant ries at a crossing whether the party injured

dent its train was run in a careful and prudent was suddenly placed in a position of imminent peril, so that he was not negligent if he did not

manner and that reasonable and lawful notice do the safest thing, and whether he acted with

or warning of the approach of its train to the

crossing in question was given to travelers on due care under the circumstances, was for the

the highway. The defendant further claims jury.

that David B. Nailor proceeded along the high[Ed. Note. For other cases, see Railroads, way and approached the crossing in a careless Cent. Dig. $ 1166; Dec. Dig. Om 350(31).) manner without making reasonable use of his 8. RAILROADS On 350(13)-INJURIES ON TRACK senses of sight and hearing to ascertain the pres

- CONTRIBUTORY NEGLIGENCE - QUESTION ence of an approaching, train.. FOR JURY.

In an action of this kind it is necessary that Whether decedent, exercising due care un

the plaintiff should both allege and prove deder the circumstances, could have stopped his

fendant's negligence, and the plaintiff cannot car in time to avoid an accident held for the recover until she has shown to your satisfacjury.

tion, by a preponderance of proof, that is, the (Ed. Note.-For other cases, see Railroads,

greater weight of evidence, that the negligence

of the defendant was the cause of the death of Cent. Dig. 8 1166; Dec. Dig. Om350(13).)

David B. Nailor. The burden of proving neg. 9. NEGLIGENCE 136(26) – CONTRIBUTORY ligence on the part of the defendant rests upon NEGLIGENCE-QUESTION FOR JURY.

the plaintiff. Only in clear cases, where the facts are un Negligence has been defined as the failure to disputed and but one reasonable inference can use such care, prudence and vigilance as a reabe drawn from them, can the courts declare a sonably prudent person, under the peculiar cirparty guilty of contributory negligence as a cumstances of the case, would exercise to prematter of law.

serve himself from being injured. There is no (Ed. Note --For other cases, see Negligence,

presumption of negligence, either on the part Cent. Dig. $ 286; Dec. Dig. Om 136(26).] of the deceased or on the part of the defendant,

from the mere fact that there was a collision of Error to Superior Court, Sussex County. the train and the automobile. Action by Mary A. Nailor, widow, against

Whether there was any negligence, at the time

of the collision, and whose, you must determine the Maryland, Delaware & Virginia Railway

from all the facts and circumstances of this Company for the death and loss of her hus case as disclosed to you by the testimony of the band. When plaintiff rested, counsel for de

witnesses. fendant moved for nonsuit on the ground of

If it shall appear to your satisfaction that

David B. Nailor was negligent, and said negli. contributory negligence on the part of the de gence contributed in any degree to or entered inceased, claimed to have been shown by plain-| to the accident, he was guilty of contributory tiff's testimony. Motion refused. Verdict for

negligence, and even though the defendant com

pany may have been negligent on its part, yet it plaintiff. Defendant brings error. Affirmed.

the negligence of the deceased contributed to or The facts are stated in the charge to the

entered into the accident at the time of the col

lision: that is, if the negligence of David B. jury of Rice, J., in the Superior Court:

Nailor and the negligence of the servants of the This action was brought by Mary A, Nailor, defendant in charge of the train were operating widow, against the Maryland, Delaware & Vir: at the time of the accident, entered into and ginia Railway Company, the defendant, to re produced it, the plaintiff in this action cannot cover damages for the death of her husband, recover. For where there is mutual negligence, David B. Nailor, occasioned by the collision and the negligence of each is operative at the of an automobile operated by the said David B. time of the accident, no action can be sustainNailor, and a locomotive and train of cars oper-ed therefor. ated by the defendant company. The plaintiff The plaintiff, however, would be entitled to alleges that the defendant so carelessly and neg. recover notwithstanding there had been some ligently ran its train at a place in Broadkiln negligence on the part of the deceased, if it hundred, this county, where its tracks cross was the negligence of the defendant alone that the public road at Lofland's Brickyard, that was the proximate or immediate cause of the ac. the train and the automobile in which the hus-cident. A person will not be held guilty of con. band was riding, collided.

tributory negligence who in the effort to avoid The plaintiff claims that on Sunday, July immediate danger, in the exigency of the motwentieth, about half past six in the evening, ment, suddenly and without time or opportunity David B. Nailor was running his automobile for reflection, puts himself in the way of other along the public highway in a northerly direc- perils without fault on his part, and particulartion, and as the automobile approached the rail-ly so if the defendant has placed him in such road crossing at Lolland's Brickyard it was im- position. It is an established rule of law that possible for him to see defendant's locomotive when one is required to act suddenly and in the and train of cars approaching the crossing from face of imminent danger, he is not required to the east, by reason of a high bank and field of exercise the same degree of care as if he had corn on the easterly side of the highway, which time for deliberation. The question under such bank and field of corn obstructed the view of circumstances is not whether the person acted

in that way which in the light of after events, timely and sufficient warning of the approach of appeared to be the one most likely to have its trains to a public crossing. Compliance with avoided the danger, but is whether he acted as signals or warning required by the statute may a person of ordinary prudence and discretion not be sufficient when the surrounding condi. would have acted under like conditions.

tions reasonably demand other and more effecIn determining whether the deceased was attive warning. Due care in case of the comthe time of the accident exercising reasonable pany means ordinarily the timely employment care and caution you may consider the ease or of sufficient signals or warnings, giving notice of difficulty of seeing an approaching train, any | the approach of trains to public places, such warning or notice that may have been given, or as highway crossings; and in the case of indithe want or absence of any warning or notice viduals due care under the present circumstanc of the approaching engine and car, and any and es means proper circumspection in looking for a all other facts, circumstances and conditions crossing, and in looking or listening, or both, shown by the evidence to have been existing, at when practicable, for an approaching train, to the time of the accident bearing upon the point. avoid collision, and the greater the peril to the

The burden of establishing contributory nego individual, the greater the duty of exercising ligence on the part of the deceased, in an ac- care by the company, and of prudence and caution like the present one, when it is relied upon tion on the part of the individual. This, after as a defense, rests upon the defendant.

all, is but common sense, the force of which · If the operator of an automobile along a pub- must be evident to all. If the defendant failed lic highway knew or had reason to know that to make use of usual and appropriate means unthe highway crossed a railroad in the immediate der the circumstances, to warn the deceased at vicinity, without knowing the location of the the time of the accident, such failure was negcrossing of the public road and the railroad, heligence on its part, and if the accident occurred must proceed on his way at a reasonable rate | by reason thereof, it would be liable, provided of speed and in a reasonably careful manner, I the deceased did not by his own

the deceased did not by his own carelessness making use of his senses to ascertain the loca contribute in some degree proximately to his tion of the crossing.

death. If under such circumstances he does not pro- A failure on the part of the defendant, as its ceed along the road as a reasonably prudent train approached a crossing at a public highman would have done under all the circumstanc-way, to sound two long blasts followed by two es and a collision occurs between the automo | short blasts of the steam whistle on the locobile and a passing train, he would be guilty of motive engine, at least three hundred yards from contributory negligence.

the crossing, as required by the act of the AsIf a traveler knew or by the reasonable use sembly, would constitute negligence on the part of his senses might have known of the presence of the company per se, but such failure on tho of a railroad crossing, drive up to and upon part of the defendant would not relieve the the same, not only without at least looking, but traveler on the highway from the exercise of without listening to ascertain if any cars are

reasonable and ordinary care in approaching the approaching, and a collision and injury or death

crossing, if the presence of the crossing was occurs to him from a passing train, which

which known or under all the circumstances, should would have been prevented had the traveler ex|

To have been known to him; nor would the deercised the proper and ordinary prudence, care

fendant be liable by reason of such failure if and caution mentioned, such traveler would be

the injuries complained of were caused by the guilty of contributory negligence, and recovery

negligence or careless conduct of the deceased could not be had from the railroad company for at the time of the accident. But if the defendsuch injury or death. When the view at the

| ant failed to make use of the warning required crossing is obstructed, greater care is necessary

by the statute at the time of the accident, and than in places where the view is unobstructed. 11

if the accident occurred by reason of such' fail. It is likewise the duty of the defendant, in the

| ure, then and in that event the defendant would movement of its trains over its tracks across a

| be liable for the death of David B. Nailor, if he public highway, to exercise reasonable care and

| did not by his own negligence or want of care diligence to warn travelers upon such highway

contribute in some degree thereto. of the approach of its trains in order to pre

If you shall believe, from the preponderance vent accidents at such crossings, and if there

of the evidence in this case, that at the time are obstructions in and about such crossings

of the accident the servants of the defendant which prevent a train of cars from being seen company negligently approached the said crossas a traveler upon the highway approaches the

ing with its train, without giving due and timecrossing, the degree of care required is measured

ly warning of its approach to said crossing, according to the liability of danger at such |

and that the failure to do so was the proximate crossing.

cause of the injuries complained of, and that The law regards a railroad crossing as a place

the deceased was free from any negligence on of danger. If a person knew or should have

his part which contributed thereto, then your known of the presence of such a crossing, its

verdict should be for the plaintiff ; or if you very presence is notice to the person approach

shall believe from the preponderance of the eviing or attempting to cross it, of the danger of dence that at the time of the accident the decolliding with a passing train. And because of fendant was not in the exercise of due and the danger, there is imposed upon such person reasonable

| reasonable care, that is, all the care and cire the duty of reasonable care and caution, and the cụmspection, prudence and discretion that an reasonable and ordinary use and exercise of bis

ordinarily prudent and careful man would have senses of sight and hearing for his own and

| exercised under the circumstances, and that others' safety and protection, and if he fails to

the want of such care and caution was the proxdo these things, whatever danger he could

imate cause of the injuries complained of, and thereby have discovered and avoided. he incurs | that the deceased was free from any negligence the peril of, if he proceeds, and recovery cannot

on his part which contributed thereto, your be had for injury or death arising from such

verdict should be for the plaintiff. But if you fault.

shall believe that it has not been shown by a Although the view of the railroad from the preponderance of the evidence that the negli. highway is obstructed, that fact does not re-gence of the defendant was the proximate cause · lieve the traveler from the obligation to look of the injuries complained of, or if you shall and listen for an approaching train. The very believe that the negligence of the deceased himfact of the existence of such obstruction, and self contributed to the injuries complained of, particularly when it is known to the traveler, I your verdict should be for the defendant. imposes additional care and caution upon him . If you find for the plaintiff, it should be for in approaching the track.

such a sum of money as will reasonably compen. sustained, or may hereafter sustain by reason of the railroad is slightly below the level of the death of her husband, David B. Nailor, of the public road and also runs in a cut at basing your verdict upon the number of years

the crossing. Near to and south of the crossthe deceased would probably have lived had he not been killed.

ing the bank on the east side of the road 1 In measuring damages in this case, you are five or six feet high, and at the time of the not to be governed by what would probably have

accident corn was standing thereon. On the been the gross earnings or income of the deceased, but by what portion of the gross earn

west there is an open field up to the right ings or income the plaintiff would probably of way of the railroad. Within thirty feet have received from the deceased as his wife, if he of the track the road has a down grade of had lived.

about two feet. The defendant took a bill of exceptions.

The view of the railroad track to the east, and sued out a writ of error, No. 7, June from the public road after leaving Carey's term, 1915, to the Supreme Court.

corner, was entirely obstructed by the bank Argued before CURTIS, Ch., PENNDWILL,

and standing corn until an occupant of the C. J., and BOYCE, J.

automobile was sixteen or eighteen feet from Charles S. Richards and Charles W. Cul- the nearest rail. The track itself was not len, both of Georgetown, for plaintiff in er- visible more than abo:at seventeen feet away. ror.' Caleb E Burchenal, of Wilmington, One or more witnesses testified that a perand Daniel J. Layton, Jr., of Georgetown, son would not know there was a track there for defendant in error.

until he was within sixteen or seventeen feet

of it. The testimony material to the question be Dr. Roberts told the deceased, about the fore the court in this case may be stated as time they turned Carey's corner, that there follows:

was a bad crossing on that road either on About five o'clock in the afternoon of July this side or the other side of the brickyard. twentieth, 1913, the deceased, a veterinarian Nailor said: “We can easily find out by goof Milford, Delaware, was proceeding in his | ing slow." automobile in an easterly direction, from The brickyard as well as the telegraph Milton in Sussex county to the home of A. poles along defendant's track were visible M. Jones. The other occupants of the car all the way from Carey's corner, The Jones were Dr. Evans Roberts, who sat by the side boy who was familiar with the crossing was of the deceased, Robert G. Wells, and his son not asked for any information about the Robert, and a son of A. M. Jones, who was crossing, neither did he volunteer any. taken in the car at Milton to show the way Roberts testified that both he and Nailor to his father's home. The deceased was were looking for the crossing after leaving operating the car, and so far as appears Carey's corner; and Roberts testified that he from the evidence he was entirely unfamiliar was also listening for a train but was not with the road and country over which he aware of the crossing or the train until it was passing.

"flashed right out before us when we came The public road on which the party were out of the corn together.” They were then traveling crosses at right angles, a short dis- about fifteen or eighteen feet from the track. tance from Milton, the single track railroad Other witnesses said they were about thirty iine of the defendant company. About three feet from the track when the train could hundred and fifty yards from the crossing first be seen. Just how far from the nearest there is a turn in the public road over rail the crossing is visible is not clear from which the automobile was running, at a point the testimony. One witness testified that it known as “Carey's Corner.” Just north of) is necessary to be within sixteen and a half the crossing, and on the west side of the feet of the track to see the ties and rails,road is a brickyard, buildings and kilns easi- to tell there is a railway there. Another ly seen from a distance, and opposite, on the witness said twenty-five feet. east side of the road about one hundred and There was no danger or warning sign at fifty feet north of the crossing, stands Mil- the crossing. The cut through which the by's house and barn. The crossing is known railroad runs is visible as far away as Caras the “Brickyard Crossing."

ey's corner, but the evidence does not show The automobile approached the crossing that the cut would indicate to a stranger the from Carey's corner at a speed variously es presence of a railroad. timated by plaintiff's witnesses from ten to The driver of the car did not stop it or fifteen miles an hour. At the crossing the slacken its speed after leaving Carey's corautomobile struck the rear end of the tender ner, for it was running at a speed of at of a west-bound train of the defendant which least ten miles an hour when it struck the was running about thirty miles an hour. side of the train. The deceased was killed by the collision, and Roberts was injured.

PENNEWILL, C. J. after stating the The physical conditions at and near the facts as above, delivered the opinion of the crossing at the time of the accident may be court: The assignment of error relied on is sufficiently described as follows:

the refusal of the court below to direct the

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because, as claimed by appellant, it clearly sand had been blown on the crossing, which appears from the evidence of the plaintifr made the track more difficult to see. that the contributory negligence of the de- The defendant contends that the deceased, ceased was the proximate cause of his death. having knowledge before the collision that

The single question, therefore, before the there was a bad crossing on one side or the court is whether the court below should other of the brickyard, which was near and have declared, as a matter of law, that the easily seen, and also of the cut, and line of deceased, the driver of the automobile, was

telegraph poles, which were plainly visible, guilty of contributory negligence, and not

should in the exercise of due care have stopentitled to recover.

ped his car, or at least have slackened its [1] The negligence of the defendant is not

speed, in order to discover the crossing, of material to the issue here, and the court's

the proximity and danger of which he had charge to the jury does not enter into the

notice and warning. And especially was this

the deceased's duty, the defendant argues, be case before us. The only question is,

cause looking for an approaching train from should the court have allowed the case to go

the east was unavailing on account of obto the jury at all? If the evidence presented

structions to the view, and listening was in behalf of the plaintiff clearly shows that

a clearly shows that equally unavailing because of the noise made the deceased's negligence was the proximate by the running car. cause of his death, then the plaintiff was not With the knowledge the deceased had was entitled to recover no matter how negligent it negligence on his part to run his automothe defendant may have been, and the jury bile as he did into the cut, at a considerable should have been directed to return a ver- down grade, when the crossing for which he dict for the defendant. Ir, however, the was looking might be in the cut? plaintiff's evidence does not clearly show

The defendant insists that while a line of such contributory negligence, then there was

poles and wires do not in these times necessano error in refusing defendant's prayer for

rily indicate the presence of a railroad, such binding instructions.

facts, together with other facts of which deThe most significant and material facts in

ceased had knowledge, were sufficient to put the case may be briefly stated as follows:

him on his guard and prevent him from run. 1. The deceased, who was driving the car,

ning his automobile into the cut, as he did, was wholly unfamiliar with the railroad

until he had discovered there was no dancrossing where the accident happened. It

ger; that a reasonably careful and prudent does not appear that he had ever traveled the

man, having the knowledge the deceased posroad before.

sessed, and with the view of an approaching 2. The deceased was told by Roberts, who

train obstructed, would have either stopped sat at his right side, that there was a bad

his car or so reduced its speed as to be able crossing on the road, “either on this side or

to stop it immediately before driving it into the other side of the brickyard"; and this

the cut. information was given when they were not

| The contention of the plaintiff is briefly

this: more than three hundred and ifty yards

That the deceased was entirely unfamiliar from the crossing.

with the road over which he was passing, had The deceased heard and understood what

no knowledge of the exact location of the Roberts said, because he answered: “We can

railroad, and because of his inability to see easily find out by going slow." 3. The brickyard, on one side or the other

the track until almost upon it, he could not of which was the crossing, was clearly visible

by the exercise of due care avoid collision

with the train which was not visible until it to the occupants of the automobile all the

"flashed right on him." way from Carey's corner, a distance of about

[2] A part of the plaintiff's testimony estabthree hundred and fifty yards; and the cut lishes such facts, and it is a familiar rule of through which the railroad ran, as well as

law, that in determining such a question as is the telegraph line, along defendant's road,

now before the court, that testimony must be were visible at a like distance. 4. The driver of an automobile could not, the plaintiff.

accepted as true which is most favorable to by looking, tell there was a railroad crossing

[3] Under the testimony in this case re in the cut until he was within about seven- specting obstructions to the view, the court teen feet of the nearest track.

are of the opinion that they cannot say as 5. After leaving Carey's corner the auto matter of law that the deceased could have mobile was running at least ten miles an seen the train in time to avoid the accident. hour until it struck the train.

Whether he could or could not was a ques 6. The view of the train approaching from tion for the jury to determine under instructhe east, as well as of the track, was entirely tions from the court. obstructed by an embankment and standing It was testified by one or more of plaincorn, after leaving Carey's corner, until the tiff's witnesses that some of the occupants of driver of the automobile was sixteen or eight. the automobile looked and listened till the een feet from the track.

accident happened, and neither saw nor heard

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