Cleveland, C., C. & St. L. Ry. Co. v. Tartt

• Citation: 64 F. 823
• Decision Date: 14 December 1894
• Docket Number: 129.
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. TARTT.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

64 F. 823

CLEVELAND, C., C. & ST. L. RY. CO. v. TARTT.

No. 129.

United States Court of Appeals, Seventh Circuit.

December 14, 1894

On July 7, 1891, the deceased, Jesse H. Phillips, Sr., the plaintiff's intestate, was killed by a collision with a train of the appellant (the defendant below) in the village of Venice, in the state of Illinois. The declaration consisting of a single count, charges, in substance, that the defendant, on July 7, 1891, at a point within the incorporated village of Venice, killed the plaintiff's intestate, and avers that at the time of the collision, and immediately before his death, the deceased was on defendant's track, exercising all due care and diligence in seeking to rescue his minor son, aged eight years, who was in imminent peril from said train and engine, and that while exercising due care and diligence in that behalf he was killed; that there was in force in the village of Venice an ordinance by which it was provided that railroads should not run engines or trains within its limits at a greater rate of speed in excess of 10 miles an hour, to wit, at the speed of 60 miles an hour or thereabouts, in violation of said ordinance; that defendant's servants in charge of said engine and train saw the child upon the tracks in time to have enabled them, by the exercise of slight care, to have reduced the speed and averted the danger, 'yet with gross and reckless and wanton negligence' they failed and neglected to reduce the speed until the collision occurred and 'with said gross and wanton negligence' they failed to give any signal or warning of the approach of said train, and that by reason of 'said gross and wanton negligence' the deceased was killed; that the deceased left surviving him a widow and two minor children, who have suffered damage in the sum of $5,000. The pleas were the general issue, and that the deceased came to his death by his own negligence, to which latter plea there was a replication in denial.

The deceased had lived for about two months in a house located close to the railroad tracks. Every morning many trains passed his house, to and through the village of Venice, at a rapid rate of speed. The train which came into collision with him passed on the same track every morning at substantially the same rate of speed as on the morning of the fatal accident. The decedent either knew or was chargeable with knowledge of these facts. In going from his home to the village of Venice, the deceased could take the wagon road, a public highway which passed near his house and led directly into the village, running parallel with and immediately adjoining the railway, or he could take the railroad track or right of way. He took his son, aged eight years, and started to walk down the railroad, and on its right of way, to the village of Venice, distant about one mile from his home. He was killed at a point about 2,400 feet distant from his house. The defendant's track was straight and level for a distance of about 2,400 feet from the point where the injury occurred in the direction from which the train was coming and a person on the track at that place could have been seen for that distance before the train reached him. Neither Phillips nor his son was seen by the engineer or fireman until the train was under the Merchants' bridge, distant from the point of collision only 785 feet; that, when seen, the deceased was walking along the east side of the track, and his son was walking between the rails, a few steps behind the father. They were going in the same direction as the train, and did not appear to be giving any attention to avoid danger from approaching trains. As soon as they were seen, the danger signal was sounded, and the emergency air brakes applied, but the speed of the train was so great, being from 50 to 60 miles an hour, that it did not stop until it had reached a point some 1,700 feet beyond the point of collision. The decedent did not seem to have had any apprehension of the approach of the train until the danger signal was sounded, when he sprang to the rescue of his son, and crossing the track from east to west, he caught the lad in his arms, and sought to carry him out of danger, but before he got off the track he was struck by the engine, and both were killed. The point of collision was 2,390 feet from the house of the deceased. On the trial of the cause, to support the issues on his behalf, the plaintiff offered in evidence a copy of an ordinance of the village of Venice prohibiting the running of trains through that village at a greater rate of speed than 10 miles an hour. A certificate was attached thereto, which, so far as material, reads thus: 'I, A. L. Summers, hereby certify that the annexed and foregoing is a true copy of Ordinance No. 32 of the village of Venice, passed July 7, 1877, and duly published according to law. ' The defendant objected to the introduction of the copy of the ordinance in evidence on the ground that it did not appear that it had been published in any of the modes prescribed by law. The objection was overruled, the copy read in evidence over the objection and exception of the defendant. The plaintiff also offered in evidence a copy of the ordinance in question, contained in a pamphlet copy of ordinances, whose sole authentication was as follows: 'Ordinances Adopted by the Board of Trustees of the Village of Venice, in Madison County and State of Illinois, John Haps, Printer, 1884,'-- which authentication was printed on the cover of said pamphlet. The defendant objected to the admission of the printed copy of the ordinance in evidence on the ground that it did not purport to be published by authority of the board of trustees of said village. The objection was overruled, and the copy of the ordinance was read in evidence, to which the defendant save an exception. The court, after stating the material averments of the declaration, charged the jury as follows: 'The burden of establishing the negligence imputed in the declaration to the defendant, or such portion of it as constitutes a cause of action or creates a liability against the defendant by the weight or preponderance of the evidence, rests on the plaintiff; and, if the evidence is equally balanced on this point, you should find the defendant not guilty. The plaintiff's intestate was bound under the law, in order to warrant recovery, while on or dangerously near defendant's track, to exercise due care and caution, such as the dangerous position in which he found himself would naturally and reasonably have suggested. If, however, the weight or preponderance of the evidence in this case shows that the deceased father was struck and killed while attempting to rescue his child from danger of the approaching train, the railroad company would be liable if it was guilty of negligence with respect to the child before the father attempted the rescue, or with respect to the father and child after an attempt to save the child began, although the father might have been guilty of contributory negligence in permitting the child to go on the track. If the evidence shows that at the time of the accident the defendant's engine and train of cars were running through the incorporated village of Venice at a greater rate of speed than ten miles per hour, and, while running at such excess of speed within said incorporated village, struck and killed plaintiff's intestate, from such act of excessive speed, the jury may presume negligence on the part of the defendant. But this act of negligence on the part of the defendant, if proven, would not absolve the deceased from using due care under all the circumstances surrounding him at the time; but the rule of law ordinarily obtaining (that, if the immediate cause of the injury can be traced to want of ordinary care and caution in the parties injured, there can be no recovery) must be taken subject to the qualification that contributory negligence on the part of the injured will not defeat the action, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured parties' negligence,'--to the giving of which charge to the jury, and each and every part of the same, the defendant, by its counsel, then and there excepted. The defendant seasonably presented to the court 15 written instructions, and asked the court to give them in charge to the jury. The court refused to give any one of said instructions, and the defendant duly excepted. Such of these instructions as are deemed material to the determination of this cause will be referred to in the opinion of the court. Some other subordinate questions are presented, but their consideration is unimportant, in the view which we take of the case.

John T. Dye and George F. McNulty, for plaintiff in error.

Amos R. Taylor and William L. Murfree, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

After making the foregoing statement, the opinion of the court was delivered by BAKER, District Judge:

The declaration, the course pursued on the trial, and the charge of the court place the right of recovery on the ground of negligence in one or all of the following particulars namely: (1) In running the engine and train of cars through the village of Venice at a rate of speed in excess of 10 miles an hour, in violation of an ordinance; (2) or in failing to give timely warning of the approaching train; (3) or in failing to use care and diligence to stop the train before the fatal collision occurred. The case was not tried on the theory that the plaintiff's intestate was purposely and intentionally killed by the employes of the defendant in charge of the train. The declaration sounds in tort for the negligent, and not...