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

• Decision Date: 01 April 1895
• Docket Number: 508.
• Citation: 67 F. 665
• Parties: CHICAGO & N.W. RY. CO. v. NETOLICKY.
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 665

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

No. 508.

United States Court of Appeals, Eighth Circuit.

April 1, 1895

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

Charles A. Clark, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was a railroad crossing case. The defendant in error, Voclov Netolicky, suing as administrator of Joseph Tripkosh deceased, brought an action against the Chicago &amp Northwestern Railway Company, the plaintiff in error, for the death of his intestate, Joseph Tripkosh, who was killed by a freight train of the defendant company on December 1, 1892 at a point a few miles south of the city of Cedar Rapids, in the state of Iowa, where the defendant company's railroad crosses one of the main traveled thoroughfares leading from the south into the city of Cedar Rapids. The undisputed testimony in the case warrants the conclusion that the railroad crossing in question was more than ordinarily dangerous, for the following reasons: Owing to the location of the crossing near a large city, many vehicles pass over the crossing daily and hourly. For a considerable distance north of the crossing, in the direction of Cedar Rapids, the public thoroughfare runs parallel to and on the west side of the track of the Burlington, Cedar Rapids & Northern Railroad Company, hereafter spoken of as the 'Burlington Road,' which track is there laid on a high embankment. For at least 80 rods north of the crossing in question the public highway is quite close to this embankment, and in the lee thereof, so that the view to the east is entirely cut off. On the west side of the highway there is a grove, which also extends from the crossing for a considerable distance to the north, and effectually obstructs the view to the west. The track of the defendant company runs about due east and west, passes underneath the track of the Burlington road through a culvert in the embankment, and crosses the highway at grade, at right angles to it, and at a point not more than 120 feet west of the mouth of the culvert. Travelers on the highway approaching the crossing from the north cannot see a train on the defendant's road approaching from the east, until they are, as some witnesses say, within 10 feet of the crossing. The embankment of the Burlington road, at the culvert and for some distance both north and south, is 20 feet high. The culvert through the embankment is 29 feet wide. On some occasions it seems that it is quite difficult for a person on the highway north of the crossing to hear a train approaching from the east, until it emerges from the culvert, or, if the rumble of a train is in fact heard, to determine accurately whether it is approaching on the Burlington road or on the defendant's track. At the time of the accident, the plaintiff's intestate, who was a man then about 50 or 55 years old, was driving home from Cedar Rapids with a double team attached to an empty wagon, which was provided with a wood rack for the purpose of hauling wood. He was traveling south along the highway above described, and, as he reached the crossing, was struck and killed by an engine of a freight train that was running west on the defendant's track.

As is usual in this class of cases, there are two fundamental questions presented by the record. The first is whether the plaintiff's intestate was so obviously guilty of contributory negligence that the trial court should have directed a verdict for the defendant on that ground. The second is whether there was such an utter failure to produce evidence tending to show negligence on the part of the defendant company, its agents or servants, that the court should have directed a verdict in the defendant's favor for that reason.

The material facts, other than those heretofore stated, which the evidence tended to establish, and in the light of which these questions, particularly the first, must be determined, are as follows: The day of the accident was a cloudy winter's day. There was some snow on the ground, and the wind was blowing moderately from the north. For some distance before reaching the crossing, Tripkosh had driven along the road in company with a two-horse sleigh, which carried the mail, a driver, and one passenger. When the deceased reached the crossing, he was 15 or 20 rods in advance of the sleigh. The deceased had been driving at a trot a portion of the time, until he came within 15 yards of the crossing. The wood wagon in which he was riding made some noise. The two persons riding in the sleigh had heard the coming freight train for some little time before Tripkosh reached the crossing, but the deceased had given no outward indication, as these persons say, that he was conscious of its approach until the engine was heard by the driver of the sleigh to whistle for the crossing, when, as the driver says, Tripkosh looked first to the west, then back north along the Burlington road or track, and then east. When he first seemed to become aware of its approach on the defendant's track, as he looked east, his team was within 4 feet of the railroad track, and he was himself within 15 feet of it. The deceased then whipped his horses, and made an urgent effort to get across, but failed in the attempt. There was other testimony which tended to show the following facts: That, at a point 34 feet north of the track, the engine might have been seen 180 feet east of the crossing; that the freight train was running 18 miles an hour, and possibly at a higher rate of speed; that the first whistle heard by the driver of the sleigh, which the deceased apparently heard, was sounded when the engine was between the whistling post east of the culvert and the culvert, at a point about 400 or 500 feet from the crossing; and that when the deceased first saw the engine, and became conscious that it was approaching on the defendant's track, it was much nearer to the crossing, and, at the speed it was running, would cover the intervening space in a very few seconds. There was also some negative testimony, given by persons who were in the immediate vicinity of the crossing, to the effect that they did not hear the engine sound its whistle or ring its bell until the engineer, on entering the culvert, discovered the deceased in the act of passing over the track.

On this state of facts, it is contended for the defendant company that, as the two persons riding in the sleigh heard the approach of the train some time before they reached the crossing, the deceased should also have heard it, and that as the train might have been seen at a distance of 34 feet from the track, the deceased should have seen it, and should have stopped at that point until the train passed. For both of these reasons, it is claimed that the deceased was obviously guilty of contributory negligence, and that the court should have so declared as a matter of law. This contention, however, overlooks the fact that it was not conclusively shown by the testimony that the deceased might have seen the engine of the approaching train when he was 34 feet north of the crossing. One witness testified, from a personal examination of the place, that he could not have seen through the culvert, the east entrance of which was a little less than 180 feet from the crossing, until he was within 10 feet of the track; and that he did not in fact see the approaching train until his team was within 4 feet of the track, and he was himself within 15 feet of it, is a conclusion that the jury were entitled to draw from the testimony of all the persons who were eyewitnesses of the accident. Moreover, the apparent failure of the deceased to hear the rumble of the approaching train, as others heard it before they came in close proximity to the track, does not seem to us to be a circumstance which in itself conclusively showed that he was guilty of a want of ordinary care. He was riding in a wagon over frozen ground, which necessarily made more noise than the sleigh, and his sense of hearing, though not defective, may have been less acute than that of the persons in the sleigh. Besides, his action when the whistle was first sounded, as described by the driver of the sleigh, in looking first to the west, then to the north, and finally to the east, was sufficient to warrant an inference that the first signal heard did not indicate to the deceased from which direction the train was approaching, and that, for some reason, the first sound heard by him seemed to come from the west or north rather than from the east. Neither can we say that the conduct of the deceased in attempting to cross the track after he saw the approaching train was so manifestly negligent that the court should have denied the plaintiff's right to recover. It must be borne in mind that his team was then practically on the track; that he was confronted with a great peril; that he had no time for reflection; and that the average man thus situated would naturally obey the first impulse. It is not reasonable to predicate negligence of what a person acting on a sudden impulse, and without time for thought, may do under such circumstances. If he was guilty of a culpable neglect of duty, it consisted, as we think, in getting into the dangerous situation last described, rather than in the attempt to cross the track after he saw the train; and, as we have already remarked, it does not occur to us that the mere fact of his near approach to the track before discovering the train was in itself a circumstance which conclusively established a want of ordinary care. The conditions surrounding him were such that it is by no means improbable that he may have been exercising his sense of hearing and his other faculties with as...