"And the engine came along just then and ran over it?"
"Yah."
Ford suddenly sat upright, turned away, seemed to have lost interest, and said:
"That's all, Mr. Koerner."
And the old man was left sitting there, suspended as it were, his neck out-thrust, his white brows gathered in a scowl, his small eyes blinking.
Sharlow looked at Marriott, then said, as if to hurry Koerner off the stand:
"That's all, Mr. Koerner. Call your next."
When all the testimony for the plaintiff had been presented Ford moved to arrest the case from the jury; that is, he wished Sharlow to give judgment in favor of the railroad company without proceeding further. In making this motion, Ford stood beside his table, one hand resting on a pile of law-books he had had borne into the court-room that afternoon by a young attorney just admitted to the bar, who acted partly as clerk and partly as porter for Ford, carrying his law-books for him, finding his place in them, and, in general, relieving Ford from all that manual effort which is thought incompatible with professional dignity. As he spoke, Ford held in his hand the gold eye-glasses which seemed to betray him into an age which he did not look and did not like to admit. Marriott had expected this motion and listened attentively to what Ford said. The Koerners, who did not at all understand, waited patiently. Meanwhile, Sharlow excused the jury, sank deeper in his chair and laid his forefinger learnedly along his cheek.
Ford's motion was based on the contention that the failure to block the frog--he spoke of this failure, perfectly patent to every one, as an alleged failure, and was careful to say that the defendant did not admit that the frog had not been blocked--that the alleged failure was not the proximate cause of Koerner's injury, but that the real cause was the ice about the frog on which Koerner, according to his own admission, had slipped. The unblocked frog, he said--admitting merely for the sake of argument that the frog was unblocked--was the remote cause, the ice was the proximate cause; the question then was, which of these had caused Koerner's injury? It was necessary that the injury be the effect of a cause which in law-books was referred to as a proximate cause; if it was not referred to as a proximate cause, but as a remote cause, then Koerner could not recover his damages. After elaborating this view and many times repeating the word "proximate," which seemed to take on a more formidable and insuperable sound each time he uttered it, Ford proceeded to elucidate his thought further, and in doing this, he used a term even more impressive than the word proximate; he used the phrase, "act of God." The ice, he said, was an "act of God," and as the railroad company was responsible, under the law, for its own acts only, it followed that, as "an act of God" was not an act of the railroad company, but an act of another, that is, of God, the railroad company could not be held accountable for the ice.
Having, as he said, indicated the outline of his argument, Ford said that he would pass to a second proposition; namely, that the motion must be granted for another reason. In stating this reason, Ford used the phrases, "trespass" and "contributory negligence," and these phrases had a sound even more ominous than the phrases "proximate" and "act of God." Ford declared that the railroad yards were the property of the railroad company, and therefore not a thoroughfare, and that Koerner, in walking through them, was a trespasser. The fact that Koerner was in the employ of the railroad, he said, did not give him the right to enter in and upon the yards--he had the lawyer's reckless extravagance in the use of prepositions, and whenever it was possible used the word "said" in place of "the"--for the reason that his employment did not necessarily lead him to said yard and, more than all, when Koerner completed his labors for the day, his right to remain in and about said premises instantly ceased. Therefore, he contended, Koerner was a trespasser, and a trespasser must suffer all the consequences of his trespass. Then Ford began to use the phrase "contributory negligence." He said that Koerner had been negligent in continuing in and upon said premises, and besides, had not used due care in avoiding the ice and snow on and about said frog; that he had the same means of knowing that the ice was there that the railroad company had, and hence had assumed whatever risk there was in passing on and over said ice, and that then and thereby he had been guilty of contributory negligence; that is, had contributed, by his own negligence, to his own injury. In fact, it seemed from Ford's argument that Koerner had really invited his injury and purposely had the switch-engine cut off his leg.