Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
Eleanora Spreitler, as administratrix of the estate of Frank J. Spreitler, deceased, brought action against the defendant, the Louisville and Nashville Railroad Company, for the death of her decedent. The complaint alleged that Spreitler and one Fournie were driving northwardly along State Highway 159 after dark on the evening of January 15, 1939; just at the edge of the Village of Swansea in Illinois, Highway 159 crosses the Defendant's tracks at grade; that one of the trains of the defendant ran into the truck and killed the decedent.
The defendant was charged with negligence in that a wigwag signal which had been maintained at the crossing in question to warn the public of approaching trains was out of repair and not working on the night of the accident. This signal had been there for over two years. Other acts of negligence charged were failure to blow the whistle and ring the bell for the crossing. The plaintiff produced no evidence of such failure to blow the whistle and ring the bell, and the court instructed the jury that the plaintiff had not proved the negligence charged in this respect, and submitted the case to the jury on the alleged negligence of the defendant in failing to keep the wigwag signal in repair and working. There was a verdict for the plaintiff. Motion by the defendant for directed verdict at conclusion of all the evidence was overruled. This was assigned as error.
The plaintiff relied upon the evidence of Fournie, who was riding in the truck with the decident. According to his testimony, he was familiar with the crossing and the existence of the wigwag signal. He was riding in the seat opposite Spreitler, who was driving the truck. They were riding in an enclosed cab. It was about 6:30 p.m., and dark. The weather was cold, and a wet snow was falling and sticking to the windshield. There was a windshield wiper in front of the decedent, and it was working. There was no windshield wiper in front of Fournie, and the snow was sticking to the windshield until Spretler turned on the heater. Then the snow slid down on the windshield and left a hole, and he looked through that hole for a block and a half, trying to see the signal. The truck was going aobut thirty miles an hour. These questions were asked Fournie and he gave the following answers:
"Q. Now then, what do you say to the jury about the operation of that signal device as the truck approached that crossing? A. I didn't see it working at all.
"Q. As you were doing that, going up to and on that crossing did you see that signal device operating at any time on that trip? A. No, sir.
"Q. Tell the jury, Mr. Fournie how your eyes are and how they wre at that time. A. In good shape as far as I know.
"Q. * * * on that occasion as you drove along there what had you seen or heard, if anything, of any railroad train? A. Didn't see anything, I looked for the signal blink and I could not see it working away up high.I had to stoop to look up to try to see it.
"Q. Did you see anything? A. No, sir."
On cross-examination, the questions to and answers of Fournie were as follows:
"Q. You didn't see the wigwag working? A. No, sir."
After objection, the question was repeated to ...