Chicago, St. P., M. & O. Ry. Co. v. Kroloff

• Decision Date: 12 October 1914
• Docket Number: 4098.
• Citation: 217 F. 525
• Parties: CHICAGO, ST. P., M. & O. RY. CO. v. KROLOFF.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F. 525

CHICAGO, ST. P., M. & O. RY. CO. v. KROLOFF.

No. 4098.

United States Court of Appeals, Eighth Circuit.

October 12, 1914

Syllabus by the Court.

A refusal by the court to grant a specific request to withdraw from the jury at the close of the trial one of several charges of negligence on which the plaintiff is seeking to recover is fatal error, if there is no substantial evidence to sustain that charge, although there may be evidence to sustain others, because the presumption is that error produces prejudice, and the appellate court cannot know that it was not upon that baseless charge that the jury founded its verdict.

It is the duty of the trial court at the close of the evidence, at the request of counsel, to direct the finding of the jury upon each issue of fact upon which the evidence is undisputed, or so clearly preponderant, or of such a conclusive character that the court would be bound in the exercise of a sound judicial discretion to set aside a contrary finding.

'No one, whether passenger, licensee, or trespasser, can frequent or walk over a private railroad yard covered by many tracks employed constantly for a variety of purposes like through travel, switching, breaking up, and making up trains, without scrupulously * * * exercising the utmost * * * vigilance in looking out for approaching engines and trains. ' Hart v. Northern Pacific Ry. Co., 196 F. 180, 185 116 C.C.A. 12, 17. It is his duty to look and listen. If he cannot see or hear that no engines or cars are approaching it is his duty to stop until he can. If smoke or steam obscure his vision, or noise his hearing, it is his duty to keep off the track until they so disappear that he can be sure that he will incur no danger by entering upon or crossing it.

It is not a lack of ordinary care for a railroad company to fail in its private railroad yard in constant and active use, over which its employes have been and are in the habit of crossing to and from their work, not in crowds, but thinly scattered to place or maintain a man for the purpose of warning employes of its approach, notifying the engineer of their proximity, and turning an angle cock to stop it, upon a switch engine which is working in the yard, with its bell ringing, its headlight burning, and its engineer and fireman watching for the employes and handling the engine as the rule of the company requires them to do.

George W. Peterson, of St. Paul, Minn. (Sargent, Strong & Struble, of Sioux City, Iowa, on the brief), for plaintiff in error.

Arnold L. Fribourg, of Sioux City, Iowa (Henderson & Fribourg, of Sioux City, Iowa, on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

A judgment for $6,000 for alleged negligence causing death is assailed here. The railroad company, the defendant below, complains that the trial court did not withdraw from the jury the charges of the defendant's negligence and that it did not instruct the jury that the evidence conclusively proved that Joseph Brotsky contributed to his own injury. These facts were admitted or conclusively proved: Brotsky was killed by his collision with a switch engine of the defendant, which was backing north on the defendant's north-bound main track in its yards at Sioux City at about 6 a.m., on October 16, 1912. At the place of the accident the track was free from obstructions to the vision, other than smoke and steam from the engines, for more than 1,000 feet to the south. There was a headlight on the north end of the switch engine, which was burning, and the bell of the engine was ringing. The railroad yards of the defendant extend north and south at Sioux City for 2 or 3 miles, and it was in a busy part of these yards, and within 4 or 5 blocks south of its roundhouse, oilhouse, and coal chute that this accident happened. The north-bound main track of the defendant extends through these yards from south of Seventh street to Twenty-Second street. Adjoining this track on the west lies the defendant's south-bound main track, and east of its north-bound main track and nearly parallel to it extends the main track of the Illinois Central Railroad Company. There are public crossings of these tracks at Seventh street, Eleventh street, and Nineteenth street, but none between these streets. The accident occurred between Thirteenth street and Fourteenth street, where there was no public crossing, but many of the employes of the defendant, and among them Mr. Brotsky, who worked for the defendant on the west, and lived on the east, side of these tracks, had been accustomed to cross them near the place of the accident in going to and from their work. Brotsky was going to his work. He was last seen alive walking north in the railroad yard between Eleventh and Fourteenth streets. At the time and place where the accident occurred the hostler was backing an engine down the south-bound main track of the defendant, and with it was pulling another engine. The more southerly engine had its cylinder cocks open and was blowing steam, and it passed the north-bound switch engine at about the time and place of the accident. The only light on the south end of the south-bound engine was a red light in a lantern. It had a headlight shining north. The engineer of the switch engine was on the west side of his engine, with his head and shoulders out the window; the fireman was on the east side of the engine looking north; the hostler, driving the south-bound engine, was on the east side of his engine, watching the tracks to the south of him. They were all watching for pedestrians and obstructions, but none of them saw Mr. Brotsky. After the accident some of his remains and his lunch were found along and near the west rail of the north-bound track at the place where the engines passed each other, and some of them were found on the west front and rear drivers and on the brake rigging of the north-bound engine, but none on the trucks of the tender which preceded it, or on the north footboard, strongly indicating that he collided with the engine on its west side at the time the south-bound engine passed it blowing steam from its cylinder cocks. The crew of the switch or north-bound engine consisted of the engineer, the fireman, the foreman, and two helpers. It was the duty of the engineer and fireman to look out for pedestrians and to use reasonable care to avoid collision with them. There was no evidence that this was the duty of the other three members of the crew, when, as in the case in hand, the engine was making a long movement, a mile or a mile and a half in length, from one yard or part of a yard to another. Their duties were to turn switches, make couplings, and handle cars, and at the time of the accident these three men were riding on the south footboard.

The charges of negligence which the court submitted to the jury were: (1) Omission to ring the bell; (2) omission to sound the whistle; (3) omission to maintain a sufficient headlight; (4) omission to have the foreman or one of his helpers on the north footboard to look out for and warn pedestrians, and to turn the angle cock and stop the engine. The defendant not only requested the court below to instruct the jury to return a verdict for the defendant on the ground that none of these charges was sustained by substantial evidence, but it made specific requests that the court withdraw each of these charges, and excepted to its refusal of each request, so that, if there was no substantial evidence to sustain any one of these charges, the judgment must be reversed, because, although there was sufficient evidence to sustain other charges, it may be that it was on that very charge that the jury based its verdict. A refusal by the court to grant a specific request to withdraw from the jury one of several specific charges of negligence on which the plaintiff is seeking to recover is fatal error, if there is no substantial evidence to sustain that charge, although there may be evidence to sustain others, because the presumption is that error produces prejudice, and the appellate court cannot know that it was not upon that baseless charge that the jury founded its verdict. Wilmington Mining Co. v. Fulton, 205 U.S. 60, 79, 27 Sup.Ct. 412, 51 L.Ed. 708; Deserant v. Cerillos Coal R.R. Co., 178 U.S. 409, 20 Sup.Ct. 967, 44 L.Ed. 1127; Bank of Havelock v. Western Union Telegraph Co., 141 F. 522, 526, 72 C.C.A. 580, 584, 4 L.R.A.(N.S.) 181, 5 Ann.Cas. 515; Armour & Co. v. Russell, 144 F. 614, 615, 75 C.C.A. 416, 417, 6 L.R.A. (N.S.) 602; Stevens v. Citizens' Gas & Electric Co., 132 Iowa, 597, 109 N.W. 1090.

It may be well to recall certain incontrovertible physical facts and established rules of law before entering upon the discussion of the evidence. This accident happened as the day was dawning, when it was neither dark night nor bright day. An artificial light in darkness or half darkness is visible at a long distance by one far from it, when one behind or near it can see a dark object by means of its rays but a short distance; and this is as true of a small or low artificial light as of a brilliant one. The light of a lantern as well as that of an automobile may be seen by one miles from it while those behind or near it can see dark objects by means of its rays but a few feet. Again, an...