Chicago, St. P. & K. C. Ry. Co. v. Chambers

• Decision Date: 06 May 1895
• Docket Number: 519.
• Citation: 68 F. 148
• Parties: CHICAGO, ST. P. & I.C. RY. CO. v. CHAMBERS.
• Court: U.S. Court of Appeals — Eighth Circuit

68 F. 148

CHICAGO, ST. P. & I.C. RY. CO. v. CHAMBERS.

No. 519.

United States Court of Appeals, Eighth Circuit.

May 6, 1895

Dan W Lawler and Lafayette French, for plaintiff in error.

Nathan Kingsley and H. H. Field, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

About 4 o'clock on a dark morning in October, 1891, at Taopi Minn., a passenger train of the plaintiff in error, the Chicago, St. Paul & Kansas City Railway Company, hereafter called the 'Kansas City Company,' collided with a freight train of the Chicago, Milwaukee & St. Paul Railway Company, hereafter called the 'St. Paul Company,' at the intersection of the railroads of these corporations at that place, and Patrick Chambers, the engineer of the freight train, was killed. Catharine Chambers, his widow, the defendant in error, brought an action, as administratrix of her husband's estate, against the Kansas City Company for negligence which she alleged caused the death of her husband and recovered a judgment of $5,000. The writ of error in this case was sued out to reverse this judgment.

The alleged errors upon which counsel for plaintiff in error seem to rely most confidently are that the court refused to grant their request to instruct the jury to return a verdict for the Kansas City Company at the close of the plaintiff's evidence, and again at the close of all the evidence. This request was based on the grounds that the evidence disclosed no negligence on the part of the Kansas City Company, and that it conclusively appeared from the evidence that Chambers was guilty of negligence that contributed to cause his death. If there was any error in the refusal to grant this request at the close of the plaintiff's evidence, the company waived it by subsequently introducing evidence on its behalf, and proceeding with the trial of the case on its merits. Insurance Co. v. Frederick, 7 C.C.A. 122, 125, 126, 58 F. 144, and cases cited.

We turn to the consideration of the refusal to grant this request at the close of all the evidence. There was testimony in the case at that time tending to show these facts: The railroad of the St. Paul Company runs nearly east and west at Taopi, and the railroad of the Kansas City Company runs nearly north and south through that place, and crosses the road of the St. Paul Company at grade. There was a stop board on the road of the St. Paul Company about 400 feet east of the crossing, and one on the Kansas City road about the same distance south of the crossing. There were no obstructions to the vision in the space between these railroads for a distance of more than 400 feet southeasterly of their place of intersection. The train approaching the crossing which first arrived at its stop board had the right of way over the crossing. The freight train of the St. Paul road was running west, and consisted of 28 freight cars and a caboose. When it arrived at Taopi the engine stopped nearly opposite the stop board on that road for about 50 seconds. Chambers, the engineer, was on the north side of his engine, and his fireman was on the south side of it. After the stop Chambers gave two short blasts of the whistle, and started for the crossing. Up to this time there does not seem to have been any appearance of a train approaching upon the Kansas City road. Just after he made this start for the crossing, his fireman told him that there was a train coming from the south on that road. He asked if it was going to stop, and the fireman replied that it was coming pretty fast, and he could not tell. Chambers then shut off steam until the fireman told him that the Kansas City train had stopped, and it had in fact stopped near its stop board. The St. Paul engine was then about 200 feet from the crossing, moving slowly towards it, and under perfect control. When the fireman informed Chambers that the Kansas City train had stopped, he gave two sharp blasts of his whistle, and started again for his crossing, and the fireman turned around, and commenced shoveling coal into the fire box. Just as the St. Paul engine was crossing the tracks of the Kansas City Company the engine of that company struck it, and Chambers was killed. The night was dark, and the engine of the St. Paul Company was burning a headlight according to the testimony of the plaintiff's witnesses, and it was not burning one according to the testimony of the defendant's witnesses. A passenger and a brakeman on the Kansas City train saw the lights on the St. Paul train, and knew that it was there when the Kansas City train was about 300 feet south of the crossing; but the engineer of that train testified that he did not see it until he was upon it. After the Kansas City train stopped at its stop board, neither Chambers nor his fireman looked for or saw it until an instant before it struck their engine, when they were too near the crossing to avoid the accident. Some of the testimony which supports these facts is contradicted, but for the purpose of deciding the question under consideration the court below was, and this court is, bound to consider these facts as proved, and to consider the fact established that the St. Paul engine was burning a bright headlight, because there was sufficient testimony to sustain a finding of the jury that these facts existed.

Upon this state of facts no argument can be necessary to show that there was ample testimony in this case to support a finding that the engineer of the Kansas City train was negligent, and that his negligence was the proximate cause of the injury. When he arrived at his top board, the St. Paul engine had stopped at the stop board on its railroad, and had started again, and was half way from its stop board to the crossing, moving slowly towards the latter, and under perfect control. That engine had the right of way. A brakeman and passenger on the Kansas City train saw the lights upon it, and knew that it was there, in ample time to have prevented the injury. It was the duty of the engineer of that train to look for it, and, if a man of reasonable prudence and diligence could have seen it, to see it, and to hold his train until the St. Paul train had crossed. The fact that a brakeman and a passenger on his train, upon whom much less responsibility rested, saw it, and were forewarned of the danger 300 feet distant from the crossing, is certainly sufficient evidence to warrant a jury in finding that a man of reasonable prudence and diligence would have seen it; and the fact that this engineer drove his engine upon the crossing under the circumstances without seeing it furnishes ample evidence that he was not exercising ordinary care to prevent this collision.

Nor are we convinced, after a careful examination of all the evidence in this record, that it so conclusively appears from the testimony that Chambers was guilty of contributory negligence that no reasonable man could fairly draw the opposite conclusion. It is only when the facts are undisputed, and are such that reasonable men may fairly draw but one conclusion from them, that the question of negligence is ever considered one of law for the court. Railway Co. v. Jarvi, 10 U.S.App. 439, 451, 3 C.C.A. 433, 437, 438, and 53 F. 65, 70; Railway Co. v. Ives, 144 U.S. 408, 417, 12 Sup.Ct. 679; Railroad Co. v. Converse, 139 U.S. 469, 11 Sup.Ct. 569; Railroad Co. v. Pollard, 22 Wall. 341; Bennett v. Insurance Co., 39 Minn. 254, 39 N.W. 488; Abbett v. Railway Co., 30 Minn. 482, 16 N.W. 266. There is no evidence whatever of any negligence on the part of Chambers prior to the time when the Kansas City train arrived at its stop board and stopped. Up to that time he had used every reasonable precaution to prevent a collision. His engine was then moving slowly towards the crossing within 200 feet of it, held under perfect control, awaiting the answer of his fireman to the question he had prudently put, 'Is the Kansas City train going to stop? ' His fireman was on the south side of the engine, and it was his duty to keep watch of the train approaching from the south, while it was the duty of the engineer, who was on the north side of the engine to watch for obstructions in front, or trains coming from the north of his engine. He had the right of way over the crossing. The instant that the Kansas City train stopped, it was his duty to take his train across as speedily as he could safely do so, and it was the duty of the engineer of the Kansas City train to hold it back until the St. Paul train had made the crossing. When the engineer of the Kansas City train came towards that crossing, it was his duty to stop at the stop board, and to hold his train back from the crossing until the St. Paul train was over it. Chambers had learned that he was faithfully discharging that duty, that he had stopped at his stop board, and he no doubt presumed that he would continue to discharge his duty by holding back his train until the St. Paul train was over the crossing. It is certainly not so clear as to be stated as a matter of law that a man of ordinary prudence and diligence would not have made so reasonable a presumption. It is earnestly argued that it was...