Long Island R. v. Darnell

Citations

• 221 F. 191
• 136 C.C.A. 1
• 1915 U.S. App. LEXIS 1305

Syllabus

<p>1. Negligence <@=>92—Contributory Negligence—Imputed Negligence-Taxicab Driver.</p> <p>The contributory negligence of a taxicab driver cannot be attributed to one riding in the cab when it was struck by a railroad train at a street crossing.</p> <p>[Ed. Note.—For other eases, see Negligence, Cent. Dig. §§ 142-146; Dec. Dig. <@=>92.]</p> <p>2. Negligence <@=>117—Actions—Pleading—Contributory Negligence.</p> <p>While contributory negligence is a defense, it may be relied on by defendant without being specially pleaded.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 195-197; Dec. Dig. <@=>117.]</p> <p>3. Appeal and Error <©=>1066—Harmless Error—Instructions.</p> <p>Error in charging the jury that contributory negligence could not be relied on unless pleaded was harmless, where there was no evidence of contributory negligence.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©=>1066.]</p> <p>4. Witnesses <©=>236—Examination—Hearing Sounds.</p> <p>In an action for injuries received in a grade crossing accident, it was error to permit witnesses for plaintiff, who had testified that they did not hear the whistle or hell sounded, to answer a question whether they had heard the whistle and bell on previous occasions when they were in the same rooms, where the question did not also include the conditions of storm and engaged attention which prevailed at the time in question.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. <©=>236.]</p> <p>5. Evidence <©=>586—Weight—Negative Evidence—Sound.</p> <p>Statements of witnesses that they did not hear sounds are negative testimony and must be weighed with caution.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. <©=>586.]</p> <p>6. Trial <©=>235—Instructions—Weight op Evidence—Positive and Negative Testimony.</p> <p>In an action for injuries received in a grade crossing accident, where there was positive tes