McKern v. Wabash Railroad

Appellant concedes that plaintiff made a case for the jury, in so far as the petition charges negligence in fail*411ing to give proper signal or warning of the train’s approach to the crossing on which the deceased was killed, but contends that the latter was chargeable with contributory negligence, as a matter of law. We shall, therefore, confine our discussion to the issue as thus limited.

At the place in question, the natural surface of the ground is somewhat rough and uneven. The crossing is in a cut, both track and highway being lower than the natural contour of the surface. The embankment of…