Chicago, R.I. & P. Ry. Co. v. Stepp

• Decision Date: 07 November 1908
• Docket Number: 2,725.
• Citation: 164 F. 785
• Parties: CHICAGO, R.I. & P. RY. CO. v. STEPP et al.
• Court: U.S. Court of Appeals — Eighth Circuit

164 F. 785

CHICAGO, R.I. & P. RY. CO. v. STEPP et al.

No. 2,725.

United States Court of Appeals, Eighth Circuit.

November 7, 1908

On March 14, 1906, James M. Stepp, the father of the plaintiffs below, was struck and instantly killed by a train of the Chicago, Rock Island & Pacific Railway Company, the plaintiff in error, on the depot platform at Randolph, Mo., a suburban station accommodating 400 or 500 people, and located seven miles east of the Union Depot in Kansas City. The trains of three railway systems, the Wabash Railway Company, the Chicago, Burlington & Quincy Railway Company, and the Chicago, Rock Island & Pacific Railway Company, are operated past this station, jointly, over two main tracks. These tracks run east and west. The north track, owned by the Burlington Company, was used for west-bound trains, and the south track, owned by the Wabash Company, was used for east-bound trains. The plaintiff in error did not own either of the tracks, but, under the terms of a running agreement with the Burlington Company, had the right to operate its trains between Kansas City and Cameron Junction over the tracks of the Burlington Company, and over the joint track at Randolph. While using these tracks Rock Island trains were controlled by the rules and regulations of the Burlington Company, and were subject to the direction of its train dispatchers and other agents having control of the movement of trains. The station at Randolph is situated immediately south of the tracks. In front of it, and extending in an easterly and westerly direction parallel with the tracks and level therewith, was an ordinary depot platform 186 feet long and 8 feet wide. Immediately north of the north track, and level therewith, was an open platform, without cover of any kind, 96 feet long and 6 feet wide. Extending from the depot platform due north across the tracks, and across two switch tracks north of the main track, was a narrow platform or walk 15 feet wide, level with the tracks, and connecting the two platforms. On either side of this walk the space between the two platforms was filled with cinders flush with the track and passengers going to and from trains were accustomed to walk over these cinders the same as upon the narrow walk just referred to. The space between the main tracks was 10 feet about 4 feet of which would be covered by the overlapping of cars. Notwithstanding the north platform, passengers were accustomed to get on and off trains on the north track on the south side. The deceased was a farmer living a mile or more east of Randolph. On the morning of the accident he had sent his son to Kansas City with a load of hogs to be sold on the market at the stockyards there. He himself intended to go to the city on the Burlington train which passed Randolph about 7:30 in the morning, to meet his son and look after the sale. He approached the station on a road from the east running parallel to and near the tracks. This road crosses the tracks at a point about 380 feet east of the center of the depot platform. When he reached that point he continued westward along a well-beaten cinder pathway south of the main track to the east end of the platform immediately in front of the depot and south of the tracks. As he reached the depot the west-bound Burlington train, which he intended to take, pulled in and stopped. It consisted of six coaches and was about a block and a half long. The locomotive was at a point between 70 and 100 feet west of the depot. It was emitting smoke and steam. The morning was misty, and the wind in the northeast, so that the smoke and steam from the locomotive was blown down across the south track. On this track a Rock Island train was approaching from the west. Mr. Stepp crossed the south main track from the south platform, and endeavored to get aboard the Burlington train. He had the money to pay his fare, and intended in good faith to become a passenger. He found that he was at a vestibule car, and the door was closed. He then hurried forward to the next car platform, but this, too, was vestibuled and closed. The train was then moving out. He seized hold of the handholds and tried to get in while the train was in motion. The conductor or some other employe of the road was on the car platform, and some conversation passed between him and Mr. Stepp, but there is no trustworthy evidence as to what was said. Then Mr. Stepp abandoned his effort to gain admittance, and turned to go south to the station to wait for the next train. The second step brought him upon the south track, where he was struck by the Rock Island train, which was running through the depot grounds at a speed of from 40 to 50 miles an hour. The railroad track on which this train approached the station was straight, and the view along it unobstructed by permanent objects for a distance of a mile and a half or two miles.

The plaintiff charges the defendant with negligence in two particulars: First, that no bell was rung or whistle sounded by its train as it approached the station; and, second, that the train was running at a negligent rate of speed, not only in violation of law, but in violation of the rules of the company. At the close of all the evidence the defendant moved the court to direct a verdict in its favor. The refusal to grant that motion constitutes the only error assigned in this court.

Paul E. Walker (M. A. Low, on the brief), for plaintiff in error.

W. C. Scarritt (E. L. Scarritt and Elliott H. Jones, on the brief), for defendants in error.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge (after stating the facts as above).

There is the usual conflict in the evidence as to whether the signals were given, and in the briefs there is the familiar discussion of the relative weight of negative and positive evidence. In following out this distinction courts have sometimes overlooked the fundamental fact that in such a case the plaintiff is necessarily confined to negative evidence. If such evidence is unworthy of belief simply because it is negative, then the plaintiff must nearly always fail. The fact which he has to prove is negative, viz., that the bell was not rung or the whistle sounded; and the only way that fact can be established is to bring witnesses who were so situated that they would have heard the signals if they had been given, and who testify that they did not hear them. Such evidence, of course, ranges through all degrees of credibility. If the witness had been accustomed to hear such signals frequently so that their impression would be deadened by habit, his testimony that he did not hear them would have no weight as against trustworthy affirmative evidence that the signals were given, unless the witness was able to testify to some circumstance showing that his attention was specially directed to subject on the occasion in question.

Again if a witness situated so he could hear the signals, and of such experience that he would have been likely to notice them if they had been given, testifies that he did not hear them, the credibility of his evidence is for the jury, unless there is proof that his attention at the time was absorbed in some other matter. Finally, if the attention of a witness is especially directed to the train and its signals, and at the time a distinct impression is made upon his mind that the signals are not given, his testimony is in every particular as trustworthy, though negative, as would be the evidence of another witness similarly situated affirming that the signals were given. In either case the truth or falsity of the evidence depends upon the truthworthiness of the sense of hearing and the honesty of the witness testifying to the fact. It is likewise true that affirmative evidence on such a subject does not prove the fact simply because it is affirmative. It is subject to all the infirmities, bias, and interest to which all human testimony is subject. Such evidence is also frequently given by trainmen, who are accustomed to give the signals and to hear them. It is their habit to give such signals on approaching stations and highway crossings. The mere habit is likely to blur the memory of the fact. But after an accident has occurred nothing is more natural than for the memory of a trainman, unconsciously and by a well-recognized mental illusion, to raise a recollection of the giving of the signal, out of his previous habitual practice. That the signal was given springs up in his mind, not by a process of recollection, but as the result of a long-continued habit. This truth is well illustrated in the present case. The engineer of the Burlington train knew nothing of the accident at the time it occurred. He did not hear of it until some 25 minutes later, after reaching Kansas City. In the meantime he had necessarily heard numerous locomotive bells. His opportunity to observe the ringing of the bell on the Rock Island train was meager. His own train was just starting up, with the attendant noises of his locomotive. The Rock Island train swept by him at a speed of from 40 to 50 miles an hour. Still he testifies that looking through the cab window opposite him he saw the bell on the Rock Island locomotive swinging as it passed his cab. No circumstance is mentioned why this fact, which would be a usual occurrence in passing locomotives, and would have ordinarily made no impression upon his mind, did so impress his attention on the occasion in question that he was able to recall the fact after the accident. Affirmative evidence subject to so many possibilities of error is, of course, no more trustworthy than negative evidence. In the present case there were seven witnesses who testified that the signals were not given. Some of them were in a position...