Bradley v. Missouri Pac. R. Co.

• Decision Date: 28 March 1923
• Docket Number: 6076.
• Parties: BRADLEY v. MISSOURI PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

288 F. 484

BRADLEY v. MISSOURI PAC. R. CO.

No. 6076.

United States Court of Appeals, Eighth Circuit.

March 28, 1923

W. V Tompkins, D. L. McRae, and Charles, H. Tompkins, all of Prescott, Ark., for plaintiff in error.

Edgar B. Kinsworthy and Robert E. Wiley, both of Little Rock, Ark for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and SYMES, District Judge.

KENYON Circuit Judge.

A jury in the trial court returned a verdict in favor of defendant in error in an action brought by plaintiff in error to recover damages by reason of the death of one Frank Bradley who was killed while riding in an automobile and driven by one J. U. Brown, which was struck by a passenger train of defendant in error at the Garland street crossing, in the town of Prescott, Ark. Brown likewise was killed. Plaintiff in error relies on two propositions presented by the assignments of error.

First that the court refused to give an instruction requested by plaintiff in error, as follows:

'You are told that it is undisputed in this case that the plaintiff's intestate was killed by a running train, and this makes out a prima facie case of negligence against the defendant.'

Second, that the court erred in its charge to the jury with reference to the lookout statute of the state of Arkansas and in instructing that, under the facts and circumstances of this case the lookout of the engineer alone was sufficient.

The consideration of these alleged errors is, we think, immaterial, for the reason that under the whole record in the case it is conclusively shown that both Brown and Bradley were guilty of contributory negligence in approaching the crossing, that the same was the proximate cause of their death, and that it overbalanced any negligence of the railroad company as shown by the evidence. The case, arising out of the death of Brown, was tried with this one. At the conclusion of the testimony the administratrix of the Brown estate entered a voluntary nonsuit. The court in his instructions stated to the jury that the undisputed facts made a case of clear negligence as to Brown, and pointed out differences in the relation of Bradley to the transaction from that of Brown.

This case can properly be visualized by a rather full statement of the facts. Prescott is a town of approximately 2,900 people. Garland street, where the accident occurred, is within the corporate limits, but north of the business portion of the town. There are some industries near the crossing on the west, and on the east a bottling works, an ice plant, and a gin which was the property of Brown, and which was situated 150 feet east of the track and some distance north of Garland street. Between the main line and the first street east, at a distance of 74 feet, is located an industrial track. There is a dump of earth along the right of way on the east, beginning about 150 feet north of Garland street, and getting higher to the north. The crossing at Garland street is on a level. There is a slight curve in the track commencing about 200 feet north of the crossing and running to the south. December 3, 1920, Brown and Bradley left Brown's gin about 2 o'clock in the daytime in a Ford auto for the purpose of going to Brown's house for a rake to use in the gin. The curtains of the car were up. They proceeded south on the road parallel to the track, Bradley sitting on the rear seat and Brown operating the car; turned at Garland street; drove west to the industrial track; crossed that, and without stopping, or in any way slowing up speed, proceeded to and were struck at the crossing by the fast mail train running at a high rate of speed, and which did not stop at Prescott.

It is undisputed that from a point 40 feet east of the track on Garland street a train down to the wheels of the engine would be visible to a distance 800 feet north of the crossing. Before reaching that point on Garland street the embankment of earth along the right of way made the sight of an approaching train difficult, if not impossible. There was no smoke to obscure the view. There were no other moving trains in the vicinity to distract attention; no unusual noises from the industries; nothing to confuse or perplex. A car could have been stopped within a few feet. The eyesight and hearing of the men were unaffected. Both knew of this crossing and had passed over it for years. Bradley had worked in that immediate vicinity for 10 years. Brown had crossed at this place with his Ford car practically every day for three years in going back and forth to business. They knew it was the usual time for the fast mail to pass through Prescott. This particular day it was nearly on time-- about four minutes late. None knew the crossing better than did these men. Under these circumstances the car was driven at a speed estimated at 10 miles per hour from where the road parallel to the track on the east turns into Garland street, across the industrial track, and on along the 74 feet to the main track, apparently without either Brown or Bradley looking or listening, and so far onto the track ahead of the approaching train that the car, when struck, was thrown to the west of the crossing. The only reasonable inference that can be drawn from their conduct is that they did not look, or, if they did and saw the train, deliberately took the chance of beating it over the crossing. If the former, they were guilty of gross negligence-- if the latter, gross recklessness. If parties driving automobiles persist in gambling with death at railroad crossings, their estates should not be augmented by damages if death win. Care, not chance, is the requisite at railroad crossings.

It is noteworthy in the evidence of plaintiff's witnesses that a number of them, who did not hear the bell ring or the whistle blow, heard the rumbling and noise of the train before they saw it. The witness Mrs. Moran testified that she heard the sound of the train before she saw it. She heard the train at the time the automobile was at the corner making the turn into Garland street. Witness Grayson did not hear the whistle blown nor the bell rung, but at a distance of 150 feet from the track at the Ice Cream Milling Company heard the train before he saw it and, when he saw it, it was 400 or 500 feet from the crossing. Witness Caldwell, who testified he heard no whistle, said that he heard the rumbling of the train. Witness Lumpkin who did not hear the bell or whistle, testified that he heard the train coming up the grade puffing steam. These were all witnesses for the plaintiff. Other witnesses for plaintiff heard the train whistle at the north crossing, 1,516 feet north of the Garland street crossing. A majority of the witnesses testifying on the plaintiff's side of the case as to want of signals testified to hearing the train before it reached the crossing. Why Brown and Bradley under these circumstances did not hear it, when nearly every one else in the vicinity seemed to have heard it, can only be conjectured. If they could not see the train it was their duty to listen. If he could not hear because of the noise of the automobile, it was their duty to stop. The undisputed evidence introduced on plaintiff's side of the case further shows that, from the time the automobile turned the corner on Garland street to go west until the time it was struck at the crossing, it did not slow up, but kept on at the same speed, which one witness placed at 8 or 10 miles per hour. Another witness described its speed as 'pretty pert'; 'about as they usually run about the street.'

The duty of a party approaching a railroad crossing, a known place of danger, is to look at an effective point for approaching trains. If one sees the approaching train, then, of course, there is no need for listening; but, if the view is obstructed, it is the duty to listen, and, if the noise of the automobile or conveyance is such as to prevent effective listening, then to stop and listen. A party might be excused from looking or listening at any particular point in approaching a railroad track by the intent to look or listen at a more advantageous one, but he cannot be excused from failure to look or listen at some effective place, and if by looking or listening he can ascertain the approach of a train, and fails to do so, he is guilty of contributory negligence. The necessity of stopping depends upon the question of being able to see or hear. This court in the case of Davis v. Chicago, R.I. & P. Ry. Co., 159 F. 10, 16, 88 C.C.A. 488, 494 (16 L.R.A. (N.S.) 424), said:

'The duty to stop is a relative one. It depends upon the situation of the particular case, the knowledge the traveler has of the situation, and the reliance he may reasonably place under the circumstances on his opportunities for seeing and hearing without taking the last precaution of stopping. The authorities are quite in accord on the proposition that if the view is unobstructed, so that an approaching train, before it reaches the crossing, can be seen, there is no occasion for the special exercise of the sense of hearing-- listening, and therefore there is no reason why he should stop for that purpose. On the other hand, if the view is obstructed, interfering with the sense of sight, then he must bring into requisition the sense of listening carefully and attentively. And if there is any noise or confusion over which he has control, such as that of the noise of the horse's feet, or the grinding sound of the wheels, or the ordinary noise of the vehicle, interfering with the acuteness of the sense of hearing, it is his duty to stop such noise or interfering obstruction and listen for the train before going upon the track.'

Citing this rule with approval in the case of Chicago, M. & St P. Ry. Co. v. Bennett, ...