Allnutt v. Missouri Pac. R. Co.

• Decision Date: 30 September 1925
• Docket Number: No. 6967.,6967.
• Parties: ALLNUTT v. MISSOURI PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 604 (1925)

ALLNUTT v. MISSOURI PAC. R. CO.

No. 6967.

Circuit Court of Appeals, Eighth Circuit.

September 30, 1925.

Edward Gordon, of Morrillton, Ark., for plaintiff in error.

Vincent M. Miles, of Fort Smith, Ark. (Thomas B. Pryor, of Fort Smith, Ark., on the brief), for defendant in error.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

This is a personal injury case in which the court below directed a verdict for the defendant at the close of the evidence.

Plaintiff in error, plaintiff below, while attempting to walk across one of the switching tracks of the defendant in the afternoon of the 19th of November, 1923, at a public crossing in the city of Morrillton, Ark., was struck by an engine pulling a train, and was injured.

Plaintiff alleged in his complaint that the defendant negligently failed to ring the bell or blow the whistle as the engine approached the crossing; negligently failed to keep a lookout for persons upon the track as required by the state statutes. The answer denied negligence on the part of the defendant, and alleged contributory negligence on the part of the plaintiff.

The public street ran north and south. The railroad ran east and west. Two tracks crossed the street — the main track and the passing or switching track. The main track was about 6 or 7 feet south of the passing track. Plaintiff was walking north on the public street. The train, consisting of an engine and three cars, was going west. Plaintiff, a man over 70 years of age, was familiar with the crossing. He passed over it four times a day. There was nothing to obstruct his view in the direction from which the train came. Switching movements were frequent at this point on the company's tracks. Plaintiff could hear well with his right ear, which was the one toward the train. His eyesight was good.

There was a conflict in the testimony on the question whether the bell was rung as the engine approached the crossing. The evidence is undisputed, however, that plaintiff saw the train when he was some 50 feet away from the railroad track; he testified, however, that he thought it was standing still. His testimony as to how the accident happened is as follows: "I saw the train when I first got to the crossing, and it was standing still down about the switch, and I paid no attention to it, and Mr. Morrell walked with me, and I had crossed the main track, I think, but wouldn't be sure about that, but at any rate he saw a negro coming down on the other side, going south, and he says, `There is a negro I want to see,' and he just walked off across the street over on the other crossing, or started that way, and I went on across the main track. I didn't hear anything, and I thought the train was standing still down there, and I was turned around that way looking toward Morrell, to see if he was going to see his negro, and about that time the train hit me, and that is the last I can tell you, and I don't remember anything more." Plaintiff was asked the question, "From the time you noticed this train, from the time you were back 50 feet, back from the track, did you ever look back in the direction from which this train was coming? * * * A. No, I don't think I did." The fireman testified that he was on the lookout; that when the engine was 30 to 50 feet from the crossing, he saw the plaintiff going north about the center of the mainline track; that when he saw that plaintiff continued toward the switching track, he hollered to him; that as soon as he hollered at the plaintiff, the engineer applied the emergency brake; that the bell was ringing at the time; that the engine was going about 7 or 8 miles an hour. The engineer corroborated the testimony of the fireman, and further testified that the train was running about 8 miles per hour and stopped in about 25 feet; that he applied the emergency brake and stopped the train as soon as he could after the fireman shouted. There was other testimony that plaintiff went upon the side track without apparently paying any attention to the approaching engine.

The law applicable to this state of facts is well settled. It was the duty of defendant company to exercise ordinary care to sound the usual warnings as the train approached the crossing. Inasmuch as the testimony was conflicting whether this duty was fulfilled, the question was one for the jury.

It was the duty of plaintiff to use ordinary care for his own safety as he approached the crossing. The train was in plain sight. He saw it when he was some distance from the main track. He failed to give further heed to it, but deliberately crossed the main track and went upon the switching track. He was clearly guilty of contributory negligence. Elliott v. C., M. & St. P. Ry. Co., 150 U. S. 245, 14 S. Ct. 85, 37 L. Ed. 1068; C. G. W. Ry. Co. v. Smith, 141 F. 930, 73 C. C. A. 164 (C. C. A. 8); Denver City Tramway Co. v. Cobb, 164 F. 41, 90 C. C. A. 459 (C. C. A. 8); Payne v. Blevins (C. C. A.) 280 F. 310.

Plaintiff, however, invokes the doctrine of comparative negligence. Section 8575, Crawford & Moses'...