Chicago, R.I. & P. Ry. Co. v. Pounds, 784.

• Decision Date: 02 August 1897
• Docket Number: 784.
• Citation: 82 F. 217
• Parties: CHICAGO, R.I. & P. RY. CO. v. POUNDS.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F. 217

CHICAGO, R.I. & P. RY. CO. v. POUNDS.

No. 784.

United States Court of Appeals, Eighth Circuit.

August 2, 1897

M. A Low and W. F. Evans, for plaintiff in error.

W. B Johnson and A. C. Cruce, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This case comes on a writ of error from the United States court of appeals in the Indian Territory. The suit was brought by C.S Pounds, the defendant in error, against the Chicago, Rock Island & Pacific Railway Company, the plaintiff in error, to recover damages which he had sustained by coming into collision with one of the defendant's freight trains at a road crossing in the town of Marlow, in the Indian Territory. The plaintiff below recovered a judgment in the trial court against the railway company for the sum of $5,050. On an appeal taken by the defendant company to the United States court of appeals in the Indian Territory, the judgment of the trial court was affirmed. 35 S.W. 249. The case was brought to this court by the defendant company, and the question for decision is whether the trial court should have given a peremptory instruction to the jury to return a verdict for the defendant. The judges of the United States court of appeals in the Indian Territory were divided in opinion on this question; one of them voting in the affirmative, and the others in the negative.

The material facts in the case, concerning which there was no controversy, are as follows: On the day of the accident the plaintiff drove into the town of Marlow, from the south, with a load of wood, over a road which ran parallel with the defendant's railroad track, on the east side thereof, and in close proximity thereto, for a considerable distance south of the station. As the plaintiff entered the town, driving along said road, a through freight train was also approaching the town from the south over said track, at the rate of about 25 or 30 miles per hour. At a point within the town the orad in question turned at right angles to the west, and crossed the defendant's railroad track about 100 feet south of the station. When the plaintiff, following this road, reached the crossing, his vehicle was struck by the freight train. For some time before the plaintiff reached the point where the road turned west, and until he went upon the track at the crossing, the freight train was in plain view, and might have been seen by him at any moment, had he simply turned his head and looked down the track. When the plaintiff turned west to cross the track, the train was still from 300 to 500 yards south of the crossing, and was seen by every one in his vicinity who looked in the direction from which the train was approaching. No one who witnessed the accident saw the plaintiff look in the direction from which the train was coming at any time, either before or after he reached the turn in the road; but the plaintiff testified, in substance, that as he reached the turn he looked south, but dud not see any train, and could not see down the track more than 300 yards, to a place where a fence approached the track, because the wind raised a cloud of dust which obstructed his view beyond that point. He did not claim that he again looked down the track before driving upon the crossing, although it was about 50 feet from the turn to the crossing. The usual crossing signals were given by the engineer when the train was about one-half of a mile south of the station, and as soon as the engineer discovered that the plaintiff was about to drive over the crossing he sounded the stock-alarm whistle, and made strenuous efforts to stop the train by applying the air brakes and the driving brakes. The plaintiff had been deaf for some years, and did not hear these signals. The accident occurred in broad daylight.

In view of these...