22 FEDERAL BEPOBTEB• -
to keep drinking-houses. The distinction between decisions of this
class and the case before the court is obvious.
The conclusion is that the sum nxed in the contract under consider-
ation is a penalty; and, the defendant having specined no damage,
the plaintiff must recover.
The jury will find for the plaintili a verdict for $1,000, with in-
terest and costs of suit.
Momus, Adm’r, etc., v. Cmosco, M. & Sr. P. R. Co. (Three Cases.)
(Circuit Court, LC D. Iowa. November Term, 1885.)
1. Rsrmzosn Com·.urr—Hro¤wnv T1uvm.n1z—AcommNr-S¤Nos¥—Rr:covnav,
now Arrmcrmn.
If a railroad company had no right to run a train on Sunday, and if the evi-
dence in the case s ows no right on the part of one driving a wagon over the
_ track on that day, whereby the death comtplained of occurred, the fact of the
running of the train on that day has no e ect as to a recovery. ·
B. S.um—Cnossmc yr Gmna—LAw or Iowa. ‘
Under the laws of Iowa there is nothing to prevent a railroad track being
laid on an even level with a highway.
8. SAME—R.ECIPBOCAL_DUHE8—VIGILANCE, wrwr rr rs.
The rights, duties, and obligations of a railroad comiéany, and of travelers
who drive across its track, are mutual and reciprocal. ot should keep such.
a lookout as a prudent man would in endeavoring to perform his duty.
4. SAum—PnEcmnmNcm—Rrom on War AND Rmnson Tnanrmon.
A railroad train, upon approaching a crossinig, has precedence and the right
of way over highway travelers, on account o the celerity of its motion and
the diihculty of stopping it within a short distance.
5. S.+.un—Wl¤.nN1Nc BY Arrnoscnmo Tnnns.
A railroad train must give warning to highway travelers, and that warning
must be reasonable and timely.
6. SAME-Wsmrmo Raqoman BY Iowa STATUTE—FURTHER Wamtme.
Under the laws of Iowa, when a train is within at least 60 rods of a highway
crossing in front of it, there must be given two blows of its locomotive
whistle, and its bell must be rung from t en on continuouslly until the cross—
° ing is passed. But if . under the circumstances of the case, a ditional warning
would seem necessary, such additional warning must be given.
7. SA1[E——HIGHIWAY TRAVELERS—DHlIGENCE REQUIRED.
Highway travelers approaching a railroad crossing are charged with dili-
gence to ascertain if a train is about to pass by; and their diligence must be
greater accordingly as the peculiar loca ity and the circumstances of the case
seem to require greater caution.
8. SAME-1-NJ'URY BY Accrnnnr-Acrrou-Bunnnu or Pnooir. ·
The burden of proof, in case of injury received in crossing a railroad track
on a highway, is upon the plaintilf to s ow, by a preponderance of evidence,
negligence on the part of t e defendant or its employes.
9. S.um—·CoNrnmuroaY Nmomcnncm.
If a person, in driving a wagon over a railroad crossing, has failed to exer-
cise the proper care, skill, and watchfulness, and a collision with a train oc·
curs, he as contributed to the accident, and no recovery lies, even though
negligence be proved on the part of the company or its employes.
10. SAMEvOCCUPANT or Wsoo1r—How Arwmcran BY Naomemuca or Dmvmn.
The negligence of the driver of a vehicle in crossing a railroad track is the
' negligence of the occupants.