Chicago & N.W. Ry. Co. v. Andrews

• Decision Date: 06 April 1904
• Docket Number: 1,889.
• Citation: 130 F. 65
• Parties: CHICAGO & N.W. RY. CO. v. ANDREWS.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F. 65

CHICAGO & N.W. RY. CO. v. ANDREWS.

No. 1,889.

United States Court of Appeals, Eighth Circuit.

April 6, 1904

Frank F. Dawley (N. M. Hubbard, Jr., and Charles E. Wheeler, on the brief), for plaintiff in error.

George H. Carr and B. O. Clark (James P. Hewitt, A. C. Parker, and Craig T. Wright, on the brief), for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

VAN DEVANTER, Circuit Judge.

This was an action by Andrews against the railway company to recover damages for personal injuries sustained by him in a street crossing accident wherein he was struck by one of the company's passenger trains. The petition charged the company with negligence in propelling its train over the crossing at a high rate of speed without ringing the bell of giving other timely warning. The answer denied the statements of the petition, and alleged that the injury was due to plaintiff's negligence in not exercising proper care and caution for his own protection. Plaintiff recovered in the Circuit Court. The controlling question is whether the jury should have been directed to return a verdict for defendant because of contributory negligence on the part of plaintiff. Defendant's double-track railroad crosses Main street in Scranton, a small town in Iowa, at right angles the railroad extending east and west and the street north and south. The north track is used by east-bound trains and the south track by those west-bound. The space occupied by the tracks in the vicinity of the crossing is about 50 feet in width. The crossing is at grade, and the tracks extend westward in a straight line over level ground for a mile and a half or more. West of the street and north of the tracks but not less than eight feet from the north rail, are a water tank, pumphouse, and toolhouse-- all small structures. The distances from the center of the street to these structures are about: water tank, 90 feet; pumphouse, 200 feet; and toolhouse, 375 feet. The pumphouse is used to shelter a stationary engine employed in pumping water into the water tank. The smokestack to this engine is approximately 12 inches in diameter and 25 feet in height, and is 18 feet from the north rail. North of the tracks and west of the street about 800 feet are stockyards. The accident occurred about 11 o'clock in the forenoon, January 24, 1901. A west-bound freight train upon the south track was moving slowly toward the crossing. An east-bound passenger train, called the 'Chicago Special,' struck plaintiff as he stepped upon the north track on his way over the crossing to a grain elevator south of the tracks. This passenger train usually traveled at a high rate of speed, and did not stop at Scranton. On this occasion it was composed of one of the largest passenger engines, weighing 90 tons, and eight cars was traveling about 50 miles an hour, and was an hour late. Plaintiff was a stone mason, 40 years of age, in good health and had good hearing and eyesight. He had worked much in the neighborhood of the railroad, frequently crossed the tracks at the crossing, knew of the double track, the surroundings at the crossing, and the speed of the Chicago Special. He also knew that a train might pass at any time, and that some of the trains, including this one, did not stop at Scranton. It will be assumed that the evidence showed negligence on the part of defendant in that the bell on the passenger engine was not rung as required by the statute (section 2072, Code Iowa 1897), and that the flagman at the crossing, instead of being where plaintiff was accustomed to see him, was at a place where he could not be seen by plaintiff, and failed to give warning of the approach of the passenger train. In approaching the crossing from the north, the view of the railroad to the west was somewhat obstructed by the structures and the stockyards before named, and, while there was a conflict in the evidence upon the point, it will be assumed that plaintiff was not negligent in failing to see the approaching passenger train before he reached the immediate vicinity of the tracks. The claim that plaintiff's negligence proximately contributed to the injury rests largely upon the evidence bearing upon the extent to which the view to the west along the tracks was obstructed by smoke and steam from the pumphouse. Plaintiff testified that no whistle was sounded; that he approached the crossing to a point near the center of the street, and within about six feet north of the north rail; that the west-bound freight train on the south main track was then nearing the crossing, 'was going very slow,' and 'did not make any noise to amount to anything'; that from this point he looked carefully along the tracks in both directions, and listened attentively, but could not see or hear any train other than the freight train; that the view along the tracks to the west was entirely obstructed by heavy smoke and steam from the pumphouse, which was being carried upon and across the tracks by a strong wind from the northwest, and that this smoke and steam extended 'clear to the crossing.' In view of the other evidence, it is important to note plaintiff's specific description of the precaution taken by him for his own safety. He testified:

'I walked down to the track, where I went to cut across. * * * I came to a halt, and stopped and listened, and I looked west and see this (pumphouse) smoke, saw this (freight) train coming up over the east side on the south track slowly, and looked for this other (west-bound) passenger, which was about due, east of it; then stopped again, with my left foot over the rail of the north track; then heard the chickering of the rail of the north track; then I looked up. When I heard the chickering I looked up, and throwed up my right hand and jumped. When I looked up I saw the (east-bound passenger) train. The engine seemed to swell right up-- to come right up. Then I made a desperate leap to get out of the way, and said 'Oh.' as I jumped. * * * I looked west first, then I looked east, and I saw this freight. The head of the freight engine was * * * near about the street line on the east side of the street. * * * A team had just crossed the street ahead of me, across the track. * * * The smoke that came from this pumphouse did not obstruct the view of the crossing at all as I looked south. * * * (Before I reached the crossing) this freight train from the east was a little east of the street. I had seen it. I see it moving up that way. I hurried in order to cross ahead of it. I hurried down to the track. As I walked down towards the track, I walked pretty fast so as to get ahead of that (freight) engine. I intended to cross ahead of the (freight) engine, if the coast was clear. * * * Q. So that you looked west, to see if there was a train coming, when you first reached the track? How close were you then? A. Oh, about six feet, I should judge. The freight engine had not yet crossed. I came down to a halt then. Just stopped and looked up the track, and then looked east. Where I stopped still was near about the center of the crossing. I was not between the rails. Was outside of the north rail; near about six feet from the north rail. When I thought there was no danger, I moved to get across the track. When I finally started to go across the track, I did not stop any more, but it was the engine of the passenger train that stopped me. * * * At the time, after I listened, I made the start across the track, and stepped my right foot and then the left, and I was over the north rail when I heard the jar or chinkling of the rails, and I looked up and saw the train coming across the track, and heard the chinkling of the rails, and looked up and saw this train, and jumped to the right off the track. * * * I did not see the moving across the street and jumped to the right. * * * When I looked towards the west for the train, I saw a man in the middle of the track, just coming in that smoke-- just coming that way. I could not tell who that was, his back was to me. He was not as far away as the toolhouse. He was along by the tank, in there. * * * This man had been in the middle of the track and went up that way. He was getting right just into the edge of the smoke. I do not know where he went to then. He had disappeared when I turned my head to look. That cloud of smoke did not hide him. He was going right into the smoke when I saw him. I could not see into the smoke a little ways. I saw the man right in the edge, the smoke whirling around him. * * * I turned, and looked east for the other trains, and looked for this (freight) train across the track. Q. Then did you look back again to the west? A. No, sir; not until I heard the chickering of the rails. Q. When you passed the water tank, you only looked west once, did you? A. Once. When I looked at the train-- saw the train. q. After passing the water tank, you only looked west once until the time you were struck-- just the instant before you were struck? A. No, I looked, I think, twice, because I turned my head and looked up the track, and then stepped on this plank and looked up there again, and saw this man advance up the track in the middle, and then saw this (freight) engine, and looked eastward, and ventured across the track. * * * Q. And just before taking these two steps that brought you to the track; that is, the last time you looked to the west? A. No, sir; I looked again just before I advanced to step on the track; that is when I saw the man. At that time I could not see any engine. I don't know whether the man got hit by the engine. I was not looking that way then. Q. After you saw the man disappear in the cloud of smoke, you only took just one step or so before you got hit, did you? A. The second step. Q. The second step

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