The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 421

                                
HODSON V. UNITED STATES

defendant guilty of negligence and plaintiff guilty of contributory
negligence, they were to state: "By how much in money have you
reduced the verdict against the defendant ?" The jury answered "No"
to the question, "Was the plaintiff guilty of contributory negligence?"
This court is unable to say as matter of law that the plaintiff was
guilty of contributory negligence.
According to the defendant, if the plaintiff's testimony is true, the
car which crashed into the stationary car must have been within the
sight of the plaintiff, and he should have seen it had he looked with
proper care and vision. The plaintiff's testimony was that he could
see 4 or 5 or 6 car lengths, and that the cars were on an average
36-foot cars. That would make the distance somewhere between 144
and 216 feet, instead of 310 feet, as defendant contends. The dis-
tance from the top of the hump to the place of the accident was not
less than 1,230 feet, instead of 1,000 feet, as claimed by defendant.
There is no basis, therefore, for the defendant's statement that:
"If the plaintiff's testimony is true, then the car, which was more than
310 feet away from the place of the accident, while plaintiff was only 10 feet
away therefrom, must have been traveling without an engine attached, at the
rate of 93 miles an hour, in order to have reached the point of accident at
the time the plaintiff did, and must have covered the distance from the top
of the hump to the place of the accident, which was 1,000 feet in 7.33 sec-
onds."
The plaintiff, on the other hand, asserts that, if there be substituted
the actual evidence in the case in place of the defendant's assumptions,
it will be found that the speed of the car did not need to be more
than 19 miles an hour to place it beyond the range of his vision when
he last looked, and that a car traveling at the rate of 19 miles an hour
would make the trip from the top of the hump to the place of the
accident in 45 seconds. We are satisfied upon looking into the evi-
dence that it is not of such compelling character as would justify us
in holding as matter of law that the plaintiff's negligence contributed
to his injury.
Judgment affirmed.
HODSON v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit. March 11, 1918.)
No. 4970.
1. CRIMINAL LAw  X901-TRIAL--DEMURRER TO EVIDENCE-WAIVER.
A demurrer to the evidence at the close of the case for the prosecution
is waived by defendant by introducing evidence in detense.
12. INDIANS ~38(1)-INTRODLCINO LIQUORS 1N10 INDIAN COUNTRY-TRIAL--
DIRECTION OF VERDICT.
In a prosecution for introducing liquor from without the state into an
Oklahoma county, which was formerly in Indian Territory, evidence held
sufficient to warrant submission of the case to the jury.
a. WITNESSES C2 5(4)-EXAMINTIoN--UsE OF WRITING TO RFFRESH MEMORY.
A witness may, nhile under examination, refresh his memory by the
use of a writing not made by himself, which he read or thoroughly ex-
::FPor other case see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes