Chicago, M. & St. P. Ry. Co. v. Bennett

• Decision Date: 19 September 1910
• Docket Number: 3,288.
• Citation: 181 F. 799
• Parties: CHICAGO, M. & ST. P. RY. CO. v. BENNETT.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F. 799

CHICAGO, M. & ST. P. RY. CO. v. BENNETT.

No. 3,288.

United States Court of Appeals, Eighth Circuit.

September 19, 1910

Syllabus by the Court.

Where at the close of all the evidence a motion to direct a verdict for the defendant, on the grounds that there is no substantial evidence to sustain a charge of negligence of the defendant and that the evidence of the plaintiff's contributory negligence is conclusive, is denied, an assignment of the denial as error is sufficient to invoke the review of this ruling, without a further statement of the reasons why the ruling is alleged to be erroneous.

One whose negligence contributes to his injury cannot recover damages of another whose negligence concurred to cause it even though the carelessness of the latter was the more proximate cause of it.

Where at the close of the trial the evidence so clearly discloses the fact that the plaintiff was guilty of negligence which contributed to his injury that a finding to the contrary cannot be sustained by the court, it is its duty to direct the jury to return a verdict for the defendant.

The negligence of the servants of railroad companies in failing to sound whistles or ring bells on the approach of their trains to crossings constitutes no excuse for the failure of travelers on the highways to discharge their duty to exercise reasonable care to look and listen effectively to avoid collisions before they enter upon railroad tracks.

Where a plaintiff upon a highway, approaching a railroad crossing cannot look or listen effectively without stopping, it is his duty to stop and look and listen before entering upon the railroad, and a failure so to do is fatal to his recovery, if such failure contributes to his injury.

O. W Dynes, O. M. Brockett, J. C. Cook, J. N. Hughes, and Jaques & Jaques, for plaintiff in error.

A. C. Steck, D. F. Steck, F. F. Dawley, and C. E. Wheeler, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below drove his team of horses, attached to a lumber wagon, upon the railroad of the Chicago, Milwaukee & St. Paul Railway Company at a crossing in a cut about eight feet deep, and was struck and injured by a train that crossed the highway on the railroad. He sued the company for damages caused by its alleged negligence, in that it failed to sound the whistle or ring the bell of its engine at the proper time to warn of the latter's approach. The company alleged that it rang the bell, sounded the whistle, and otherwise exercised due care, and that the plaintiff's injury was caused by his own negligence, in that he failed to exercise ordinary care to ascertain whether or not a train was approaching before he drove his horses upon the railroad.

At the close of the trial the company made a motion for a peremptory instruction to the jury to find for the defendant (1) because the evidence showed that the plaintiff was not in the exercise of ordinary care for his safety at and immediately preceding the time of his injury; (2) because this lack of care contributed to his injury; and (3) because the evidence failed to show that the company was guilty of actionable negligence. The court denied the motion, and this denial is specified as error in the company's assignment. Counsel for the plaintiff below insist that this specification is too general to invoke the consideration of the ruling by an appellate court under rule 11 of this court, which requires that an assignment of errors shall set out separately and particularly each error asserted and intended to be urged, and declares that errors not assigned according to this rule will be disregarded, and they cite Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 133, 12 Sup.Ct. 181, 35 L.Ed. 961, Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 415, 12 Sup.Ct. 679, 36 L.Ed. 485, Supreme Lodge of K.P. v. Withers, 32 C.C.A. 182, 185, 89 F. 160, 163, and Deering Harvester Co. v. Kelly, 43 C.C.A. 225, 228, 103 F. 261, 264.

The opinions in these cases have been carefully examined, but they do not seem to us to sustain the contention of counsel for the plaintiff here. The objection counsel make to the specification is that it fails to state for which of the three reasons specified in the motion its denial is now claimed to be error. The denial, however, was error, if the motion should have been granted for either of the reasons urged therein, and the eleventh rule requires counsel to set forth in their assignment the errors alleged only, and not the reasons why they alleged that they are errors. The purpose of this rule is to facilitate, not to prevent, reviews. The reasons why the denial was claimed to be error clearly appear in the motion denied, and the practice of restating them in the assignment of errors which counsel seek to establish is too cumbersome and technical to commend itself to the judgment. Where at the close of all the evidence a motion to direct a verdict for the defendant on the grounds that there is no substantial evidence to sustain a charge of negligence of the defendant and that the evidence of the plaintiff's contributory negligence is conclusive is denied, an assignment of the denial as error is sufficient to invoke a review of the ruling, without a further statement of the reasons why the ruling is alleged to be erroneous.

One whose negligence contributes to his injury cannot recover damages of another whose negligence concurred to cause it, even though the carelessness of the latter was the more proximate cause of the injury. Western Union Telegraph Co. v. Baker, 140 F. 315, 318, 72 C.C.A. 87, 90, and cases there cited.

If at the close of the trial of an action for negligence the evidence so clearly discloses the fact that the plaintiff was guilty of negligence which directly contributed to his injury that a finding to the contrary cannot be sustained by the court, it is its duty to instruct the jury to return a verdict for the defendant. Gilbert v. Burlington, C.R. & N. Ry. Co., 128 F. 529, 532, 63 C.C.A. 27, 30, and cases there cited.

The specification to which reference has been made therefore presents the question: Did the evidence at the close of this trial conclusively prove that the plaintiff was guilty of negligence which contributed to cause his injury? If every disputed issue of fact be determined, as it must be in the decision of this question, in favor of the plaintiff below, these facts were established at the trial:

The crossing at which the accident occurred was in a cut about 8 feet deep to which the highway, which extends north and south, descends from the south on an average grade of a little over half an inch in a foot for a distance of about 30 rods. The railroad runs from the east to this crossing in a cut for a distance of about 968 feet. In the angle between the railroad east of the crossing and the highway south of it were an orchard, locusts, weeds, and a barn, so that as the plaintiff came to the crossing from the south he could see nothing of the railroad or of any trains upon it between the points 30 rods south of the crossing and 25 feet south of the south rail. The railroad at this point consisted of a single track, and was a part of the main line of the company from Chicago to Kansas City. At the time of the accident the plaintiff was...