Chicago GWR Co. v. Robinson

• Decision Date: 06 March 1939
• Docket Number: No. 11231.,11231.
• Citation: 101 F.2d 994
• Parties: CHICAGO G. W. R. CO. et al. v. ROBINSON.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F.2d 994 (1939)

CHICAGO G. W. R. CO. et al. v. ROBINSON.^*

No. 11231.

Circuit Court of Appeals, Eighth Circuit.

March 6, 1939.

David A. Fitch, of Omaha, Neb. (Norris Brown, Ralph M. West, and Robert A. Fitch, all of Omaha, Neb., on the brief), for appellants.

R. B. Hasselquist, of Omaha, Neb. (Donald S. Krause, of Omaha, Neb., on the brief), for appellee.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment against appellants for damages for personal injuries sustained by appellee, plaintiff below, as a result of being run over by appellants' locomotive.

The plaintiff in his petition, as amended, alleged that the injuries for which he demanded damages were the direct and proximate result of the negligence of the defendants and their agents, the engineer and fireman in charge of the locomotive. The answer admitted the accident and resulting injuries, denied the charge of negligence and alleged that the injuries complained of were due solely and entirely to plaintiff's contributory negligence. The case was tried to a jury and a verdict was returned for the plaintiff. Various acts of negligence were alleged in the petition, but the court submitted only one: whether or not defendants were negligent in failing to keep a lookout ahead as the engine approached the place where the accident occurred. No complaint is made because other alleged grounds of negligence were not submitted.

At the conclusion of the introduction of evidence defendants moved for a directed verdict on the ground that the evidence is insufficient to support a verdict in favor of the plaintiff and against the defendants, which motion was overruled.

The appellants seek reversal on the grounds: (1) that the evidence is insufficient to support the charge of negligence submitted to the jury; (2) that the evidence establishes as a matter of law the contributory negligence of plaintiff; (3) that the court erred in the admission of certain evidence over defendants' objections; and (4) that the court erred in refusing a requested instruction relating to the alleged intoxication of the plaintiff at the time of the accident.

Since the verdict was for the plaintiff the evidence, in so far as it is in conflict, on the questions of negligence and contributory negligence must be viewed in the light most favorable to him, Megan v. Stevens, 8 Cir., 91 F.2d 419, 420, 113 A.L.R. 992; and if there be any substantial evidence to support the verdict it can not be set aside on appeal. Columbian Nat. Life Ins. Co. v. Comfort, 8 Cir., 84 F.2d 291, 292; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492.

In brief the evidence discloses that the acts resulting in the injuries complained of occurred a few minutes after sundown at approximately 7:45 p. m. on August 2, 1936, at a point about 15 feet west of the switch in defendants' railroad tracks on the outskirts, but within the corporate limits, of the City of Des Moines, Iowa. At that time and place plaintiff was lying unconscious across the tracks when defendants' locomotive traveling westward without cars on a single track at a speed of four to five miles an hour ran over him, causing the injuries for which he seeks redress. No one witnessed the accident.

At the western limits of the city of Des Moines defendants' railroad runs in a straight line east and west for a distance of more than a mile and a half. From the place where the accident occurred a switch track leads along the south side of the main line eastward to the yards. Some distance north of the right of way a street runs parallel with the tracks. The space between the street and right of way is occupied by several houses and is sprinkled with trees and gardens. Scattered residences cover the land south of the tracks. The nearest street crossing to the east of the place where the accident happened is about a half mile distant while the nearest crossing west is a mile away. A drive way runs from the right of way near the switch north to the parallel street. A well-defined pathway extends from the street north of the tracks southward across the tracks to another parallel street. This pathway had been in use for many years and was used by many people with the acquiescence of the defendants. The pathway was ordinarily smooth, but some days prior to the date of the accident the trackmen had made repairs, leaving a wire or pipe between the north and south rail protruding some inches above the level of the ties.

The plaintiff, a farm hand, had been at the home of his brother, who lived in one of the houses north of the tracks, during the evening. About 15 minutes before the accident occurred he started to walk along the pathway across the tracks on his way south. As he came upon the railroad he looked while walking across and between the rails east and west for an approaching train. In so doing he tripped on the protruding wire and fell. His head struck the rail and rendered him unconscious. He so remained lying across the tracks until the locomotive ran over him, seriously injuring him. At the time he was wearing bibless overalls and a light gray shirt. Prior to the accident he was in good health. He was 28 years of age. There is conflicting testimony as to whether or not he was intoxicated. This will be referred to later.

The engineer in charge of the locomotive testified that the engine had been cut from the train and was being driven toward the west switch at the time; that he could see the tracks for perhaps half a mile; that he looked to the west to see whether the target was lined up when about 1,000 feet away but saw no one on the track; that he then turned in his seat to take signals from the brakeman on the back end and did not look down the track to the west again. He first discovered that a man had been run over after the engine was stopped at the switch. The locomotive was drifting without power. The air had been applied some distance east of the switch; and the engine as it approached at the rate of 4 to 5 miles an hour could have been stopped within a distance of 25 to 35 feet. The locomotive was 104 to 105 feet in length, and the engineer when looking forward could not see the tracks ahead within about 200 feet because of the forward part of the engine. The testimony of the fireman was substantially to the same effect. He did not look westward as the place of the accident was approached for a distance of 1,000 to 2,000 feet. Visibility at the time was clear and they could see ahead westward along the tracks for approximately a mile.

In view of the evidence of existence of the pathway over which plaintiff was walking at the time of the accident it is conceded that the rule stated by the court in his charge to the jury is correct: that it was the duty of the engineer and fireman on the engine "to use reasonable care to keep a look-out ahead as the engine approached said place (of the accident) for persons whose presence on the tracks should reasonably be anticipated at such place when the engine would arrive there. And if there was such a failure to use such reasonable care under such circumstances, it was negligence on the part of the defendants." The defendants excepted to the instruction only on the ground that ordinary care required the engineer and fireman to keep a look-out for persons walking, standing up, and not for persons who might be lying on the ground between the tracks. This objection is without merit. Ordinary care required a look-out for persons whatever their position at the point where the pathway crossed the tracks. Clegg v. Southern Ry. Co., 132 N.C. 292, 43 S.E. 836; Id., 133 N.C. 303, 45 S.E. 657; Pickett v. Wilmington & W. R. Co., 117 N.C. 616, 23 S.E. 264, 30 L.R.A. 257, 53 Am.St. Rep. 611; Oliver v. Iowa Central Ry. Co., 122 Iowa 217, 97 N.W. 1072, 1074. The point suggested bears only upon the question of the possibility of seeing the person in time to have stopped the engine before the accident occurred. This was a question for the jury to determine in the light of all the surrounding circumstances. If plaintiff was clearly visible so that the engine men could or should have seen him when lying down then it was for the jury to say whether or not they were in the exercise of ordinary care. The evidence plainly supports the verdict of the jury that they were negligent. At the rate the engine was moving plaintiff was in view for a period of 12 to 15 minutes before the accident occurred, during which time neither engineer nor fireman looked ahead, although they knew they were approaching a pathway where persons might be crossing over the tracks. The testimony supports the finding that plaintiff was clearly visible lying down during all that time.

The case is controlled by the law of Iowa. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487. In the case of Calwell v. M. & St. L. R. Co., 138 Iowa 32, 115 N.W. 605, 607, the Supreme Court of Iowa said that in the case of a licensee on a pathway crossing a railroad track "the company, in the operation of its trains, owed to the users of this way the same care that it would owe the public at any highway or street crossing."

In Tarashonsky v. Illinois Cent. R. Co., 139 Iowa 709, 117 N.W. 1074, 1075, where a child was killed in crossing a used pathway the court said: "Even though the employés of the railroad company did not see the boy on the track, if he was passing along a licensed way, they were bound to keep a lookout for travelers; and if, in the exercise of ordinary diligence, they might have discovered him in time so that, by reasonable vigilance, a collision could have been obviated, the company cannot escape liability."

See, also, Clampit v. Chicago St. P. & K. C. Ry. Co., 84 Iowa 71, 50 N.W. 673; Thomas v. C., M. & St. P. Ry. Co., 103 Iowa 649, 72 N.W. 783, 39 L.R.A. 399; Bourrett v. Chicago & N. W. Ry. Co., Iowa, 121 N.W. 380; Booth v. Union...