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

• Decision Date: 10 September 1894
• Docket Number: 414.
• Citation: 63 F. 532
• Parties: CHICAGO, R.I. & P. RY. CO. v. SHARP.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F. 532

CHICAGO, R.I. & P. RY. CO. v. SHARP.

No. 414.

United States Court of Appeals, Eighth Circuit.

September 10, 1894

Stephen S. Brown (J. E. Dolman, on the brief), for plaintiff in error.

William Henry and W. H. Haynes, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District judge.

CALDWELL Circuit Judge.

This is an action brought by James M. Sharp, the defendant in error against the Chicago, Rock Island & Pacific Railway Company the plaintiff in error, to recover damages for a personal injury received at a railroad crossing. The plaintiff recovered judgment below, and the defendant sued out this writ of error.

In this, as in most cases of this character, the first assignment of error is that the court erred in not directing a verdict for the defendant upon the whole evidence; and in this case, as has frequently occurred in other cases of like character, we are pressed to weigh conflicting evidence, pass upon the veracity of the witnesses, and determine the case according to what we think is the weight of evidence appearing in the record. To do these things would be a flagrant invasion of the functions of the jury, and a denial to the plaintiff of his constitutional right to have the facts of his case tried by a jury. Railroad Co. v. Teeter (decided by this court at the present term) 63 F. 527; Railroad Co. v. Mortenson (decided by this court at the present term) Id. 530; Railroad Co. v Ellis, 10 U.S.App. 640, 4 C.C.A. 454, and 54 F. 481; Railroad Co. v. Kelley, 10 U.S.App. 537, 3 C.C.A. 589, and 53 F. 459.

The following is a summary of the material facts which the plaintiff's testimony tended to establish: The defendant's road crosses on the level the public highway leading south from the city of Maysville, Mo., at its station near the city where there are three tracks, known as the 'main track,' the 'passing track,' and the 'stock track,' and two switches. At the point of crossing, the railroad runs east and west, and the highway north and south, and the station stands on the north side of the railroad track and west line of the highway. At 9 o'clock at night, on the 10th of November, 1892, the plaintiff, riding in a cart (which, on the smooth dirt road, made no noise) drawn by one horse, going south, approached this crossing. The night was very dark. When within 20 or 30 feet of the crossing, he looked and listened. Looking west, he saw a switch light 500 or 600 feet west of the crossing; and, looking east, he saw a switch light 364 feet east of the crossing, and a little way beyond this he saw the smoke of a locomotive, but could not tell certainly whether it was moving or not, or, if moving, in what direction, though he thought it might be moving towards the crossing. He heard no sound but the puffing of the locomotive. The bell was not ringing and the whistle was not blowing. There was no flagman at the station, and no light there or elsewhere between the two switch lights, and nothing could be seen on the track between the locomotive and the crossing, and, satisfied that he could cross the track in safety before the locomotive could reach the crossing, even if it was coming towards him, he started to do so. His horse crossed the track in safety, but the hind end of his court was struck by a moving flat car, and he received the injuries complained of. It turned out that the locomotive was pushing three or more flat cars towards the crossing, which, owing to the darkness, the plaintiff could not see, and which he did not hear, and which had no light or flagman or other agency on them to give warning of their approach.

There was conflict in the testimony as to some of these facts, but when an appellate court is asked to set aside the verdict of a jury in a common-law action upon the facts, all conflict in the evidence must be resolved in favor of the party in whose favor the verdict was rendered. In other words, if, by giving credit to the plaintiff's evidence, and discrediting that of the defendant, the plaintiff's case is made out, the verdict must stand. Railroad Co. v. Conger, 5 C.C.A. 411, 56 F. 20; Railroad Co. v. Teeter, 63 F. 527; Railway Co. v. Lowell, 151 U.S. 209, 14 Sup.Ct. 281. The Missouri statute (Rev. St. 1889, Sec. 2608) requires the bell to be rung or the whistle to be sounded at all public crossings, and a failure to comply with the statute is negligence per se. Crumpley v. Railroad Co., 98 Mo. 34, 11 S.W. 244. But the negligence of the company does not rest alone on ...