Citizens' Gas & Electric Co. v. Nicholson

• Decision Date: 25 March 1907
• Docket Number: 2,391.
• Citation: 152 F. 389
• Parties: CITIZENS' GAS & ELECTRIC CO. v. NICHOLSON.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 389

CITIZENS' GAS & ELECTRIC CO. v. NICHOLSON.

No. 2,391.

United States Court of Appeals, Eighth Circuit.

March 25, 1907

Ralph W. Breckenridge (Emmet Tinley and Charles J. Greene, on the brief), for plaintiff in error.

George S. Wright (W. H. Hare, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

This was an action to recover for personal injuries, the evidence in which was substantially as follows: The plaintiff, while chief of the fire department of Council Bluffs, Iowa, was being driven rapidly along the east side of First street in the nighttime, in response to an alarm of fire, when the vehicle in which he was riding came in contact with a pile of freshly excavated earth, thereby throwing him out and injuring him. The vehicle was driven by a fellow fireman, who was under the plaintiff's direction and control. During the preceding day the defendant, in the course of altering its gas mains underneath the surface of the street, had excavated a trench lengthwise thereof, and a few feet west of the center, for a distance of 100 or 125 feet. Most of the earth had been thrown to the west, but the presence of two catch-basins near the curb on that side had made it necessary to throw some of the earth to the east across a street car track, which was parallel to and partly over the trench. The vehicle came in contact with the earth thrown to the east. It was piled 2 feet or more high and as near to the street car track as it well could be. There was room between it and the east curb for vehicles to pass, but the passageway was comparatively narrow. As a warning to those who might use the street during the night, the defendant had suspended three lighted red lanterns along the trench at an elevation of two or three feet. Two of these were immediately west of the trench, and one was directly over it. A watchman, with a lighted white lantern, was also stationed at the work; but his location at the moment of the accident is left in doubt and it is not claimed that he attempted to give any warning as the firemen were approaching. The witnesses differed widely respecting the proximity of the red lanterns to the pile of earth on the east, and also as to whether or not it and the lanterns could be readily observed. One witness stated that the distance to the nearest of the lanterns was 11 feet, and another said that none of them was in that vicinity. Some of the firemen and others stated that they readily saw the red lights a block or more away, but the plaintiff testified:

'I did not notice any lights as we went up First street. I was looking that night for obstacles in the street.'

And his driver testified:

'I did not see anything in the road at the time the accident happened. * * * I did not see any lights, or anything of the kind, on the west side of First street. * * * It was dark so I could see it.'

Both the plaintiff and his driver had passed along the street the morning before, and had then observed the work of excavation and its location and direction; but it is not certain that any earth had been thrown to the east at that time. It was admitted that the work of excavation was done under a permit properly issued by the city, and there was no claim that the defendant had violated the terms of the permit or any ordinance or statute. The verdict and judgment were for the plaintiff.

It is assigned as error that the court denied a motion by the defendant for a directed verdict in its favor; but, after careful examination of all the evidence, the substance of which has been recited, we are satisfied that it cannot properly be said that there was no substantial evidence of negligence on the part of the defendant, or that there was a conclusive showing of contributory negligence on the part of the plaintiff. Of course, the defendant was not bound absolutely and in every event to keep travelers away from the piles of earth and out of the trench; but it was bound to exercise ordinary care and prudence, to the end that reasonable warning be given of the existence and location of these dangerous obstructions to the usual and customary use of the street, and whether or not this duty was performed was made plainly a question of fact for the jury by the evidence respecting the relative location of the warning lights and the pile of earth with which the vehicle came in contact. Nor was the question of the plaintiff's contributory negligence in a...