Pokora v. Wabash Ry Co

Citation78 L.Ed. 1149,91 A.L.R. 1049,54 S.Ct. 580,292 U.S. 98
Decision Date02 April 1934
Docket NumberNo. 585,585
PartiesPOKORA v. WABASH RY. CO
CourtUnited States Supreme Court

Mr. Wm. St. J. Wines, of Springfield, Ill., for petitioner.

Mr. Homer Hall, of St. Louis, Mo., for respondent.

Mr. Justice CARDOZO delivered the opinion of the Court.

John Pokora, driving his truck across a railway grade crossing in the city of Spring field, Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed (66 F.(2d) 166), resting its judgment on the opinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645. A writ of certiorari brings the case here.

Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a crossing at Edwards street running east and west. Two ice depots are on opposite corners of Tenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In this crossing of the railway, the accident occurred.

The defendant has four tracks on Tenth street; a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour.

The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 232, 54 S.Ct. 172, 78 L.Ed. 285. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. A space of eight feet lay between the west rail of the switch and the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a half or three feet), as well as an overhang of the box cars, which brought the zone of danger even nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was farther back (perhaps five feet or even more), just how far we do not know, for the defendant has omitted to make proof of the dimensions. Nice calculations are submitted in an effort to make out that there was a glimpse of the main track before the switch was fully cleared. Two feet farther back the track was visible, it is said, for about 130 or 140 feet. But the view from that position does not tell us anything of significance unless we know also the position of the train. Pokora was not protected by his glimpse of 130 feet if the train at the same moment was 150 feet away or farther. For all that appears he had no view of the main track northward, or none for a substantial distance, till the train was so near that escape had been cut off. Cf. Dobson v. St. Louis S.F. Ry. Co., 223 Mo.App. 812, 822, 10 S.W.(2d) 528; Turner v. Minneapolis, St. P. & S.S.M.R. Co., 164 Minn. 335, 341, 205 N.W. 213.

In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook (C.C.A.) 27 F.(2d) 326. Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Parsons v. Syracuse, B. & N.Y.R. Co., 205 N.Y. 226, 228, 98 N.E. 331. A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross. The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle. L. & N.R. Co. v. Summers (C.C.A.) 125 F. 719, 721; Smith-Hurd Rev. St. 1933, c. 114, § 59, Illinois Revised Statutes (1933 Ed.), c. 114, par. 84.1 Indeed, the statutory signals did not exhaust the defendant's duty when to its knowledge there was special danger to the traveler through obstructions on the roadbed narrowing the field of vision. Wright v. St. Louis-S.F. Ry. Co., 327 Mo. 557, 566, 37 S.W.(2d) 591; Hires v. Atlantic City R. Co., 66 N.J. Law, 30, 48 A. 1002; Cordell v. N.Y.C. & H.R.R. Co., 70 N.Y. 119, 26 Am.Rep. 550. All this the plaintiff, like any other reasonable traveler, might fairly take into account. All this must be taken into account by us in comparing what he did with the conduct reasonably to be expected of reasonable men. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 32 S.Ct. 783, 56 L.Ed. 1221, 44 L.R.A.(N.S.) 154.

The argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is a barrier in the plaintiff's path, irrespective of the conclusion that might commend itself if the question were at large. There is no doubt that the opinion in that case is correct in its result. Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a clear space of eighteen feet within which the train was plainly visible.2 With that opportunity, he fell short of the legal standard of duty established for a traveler when he failed to look and see. This was decisive of the case. But the court did not stop there. It added a remark, unnecessary upon the facts before it, which has been a fertile source of controversy. 'In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.'

There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments.3 Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. See, e.g., Benner v. Philadelphia & Reading R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R. 759; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. 323, 7 Ann.Cas. 351; Hines v. Cooper, 205 Ala. 70, 88 So. 133; cf. Pennsylvania R. Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398. Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circumstances, and hence generally, even if not invariably, upon the judgment of the jury. See, e.g., Judson v. Central Vermont R. Co., 158 N.Y. 597, 605, 606, 53 N.E. 514, and cases cited; Love v. Fort Dodge R. Co., 207 Iowa, 1278, 1286, 224 N.W. 815; Turner v. Minneapolis R. Co., supra; Wisconsin & Arkansas Lumber Co. v. Brady, 157 Ark. 449, 454, 248 S.W. 278; cf. Metcalf v. Central Vermont R. Co., 78 Conn. 614, 63 A. 633; Gills v. N.Y., C. & St. L.R. Co., 342 Ill. 455, 174 N.E. 523. The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger. Not even in B. & O.R. Co. v. Goodman, supra, which goes farther than the earlier cases, is there support for such a rule. To the contrary, the opinion makes it clear that the duty is conditioned upon the presence of impediments whereby sight and hearing become inadequate for the traveler's protection. Cf. Murray v. So. Pacific Co., 177 Cal. 1, 10, 169 P. 675; Williams v. Iola Electric R. Co., 102 Kan. 268, 271, 170 P. 397.

Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box cars, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could...

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