26 i FEDERAL nnronmns.
one mile east of the station of Elwood, in Clinton county, in this state,
and that while upon the crossing a collision occurred with a train
passing over defendant’s road, which collision resulted in the death
of said Martha J., Floyd, and Matic Whitmer. V
_ The first and principal questions upon which the parties are at is-
sue, and which you are required to determine, are--First, was said
collision caused by negligence on part of the defendant company,
or of its employes in charge of said train? And, second, did the par-»
ties in said wagon, by negligence on their part, cause, or aid in caus-
ing, said collision?
Upon part of plaintiff it is claimed that the collision was wholly
due to negligence on part of the defendant, and its employes in charge of
said train; that the train was being `run at a high and dangerous rate
of speed; that the whistle was not sharply sounded twice, at a dis-
tance of 60 rods or more from said crossing, nor was the bell kept
ringing from the time the whistle should have been sounded un-til the
crossing was reached; that no sufficient warning of the approach of
the train was given; that, ·owing to acurve in the railway track, per-
sons operating trains thereon cannot see the road·crossing at a dis-
· tance greater than 300 yards, and that by reason of a growth of weeds
and briers upon the side of the track and road, the view of the track
. and road was obstructed; that in view of the character of the cross-
ing, and the surroundings thereof, proper precautions were not taken
by the defendant and its employes to give reasonable and timely
warning of the approach of said train; and that, in consequence there-
of, the collision occurred, without fault upon part of persons in the
wagon. On part of the defendant the several allegations of negli-
gence made against it are denied, and it is further claimed that the
collision was caused, in whole or in part, by the negligence of the-
persons in said wagon, in that the said wagon was driven upon said
crossing right in the way of the passing train, without taking proper
precautions to ascertain whether a train was approaching, and whether
the wagon could with safety be driven upon and over the railway
track.
Upon the question whether the collision was caused by negligence
on part of the defendant or its employes, the burden of proof is\upon
the plaintiff, who must satisfy you, by a fair preponderance of the
evidence, that the collision was caused by negligence on part of de-
. fendant or its employes, before he can ask a verdict at your hands.
If, under the evidence in the case, you find that when the train was
approaching the crossing where the collision occurred, the whistle
upon the locomotive was not sharply sounded twice, when at a dis-
tance of 60 rods or more from the crossing, and that the bell was
not rung continuously from the place where the whistle should have
been sounded, up to the time the crossing was reached; or if you {ind.
that either one of these requirements was omitted, and that by rea-
son of the neglect so to do the collision was caused,-then you would