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

• Decision Date: 25 November 1907
• Docket Number: 2,464.
• Citation: 159 F. 10
• Parties: DAVIS v. CHICAGO, R.I. & P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

159 F. 10

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

No. 2,464.

United States Court of Appeals, Eighth Circuit.

November 25, 1907

Robert J. Brock, for plaintiff in error.

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

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

PHILIPS District Judge.

The plaintiff in error (hereinafter designated the plaintiff) sued the defendant in error (hereinafter designated the defendant) to recover damages for personal injuries. As the trial court at the close of the plaintiff's evidence directed a verdict for the defendant, a review of the case made is rendered necessary.

The plaintiff, a man of middle age, and one Pfeutze, resided in the town of Manhattan, Kan., a few miles distant from the crossing of the public highway over the track of the defendant railroad company where the accident in question occurred. On the morning of October 16, 1904, they left home in a two-seated rig drawn by one horse belonging to said Pfeutze, the latter driving, to visit some point in the country of mutual interest. They were close personal friends and so traveled together in companionship. They approached the crossing in question from a northeasterly direction, the roads intersecting each other at right angles. A bluff from 150 to 200 feet high arose just west of the crossing, extending back some distance, cutting off the view of a train of cars coming from the west when the traveler approached this crossing, under conditions hereinafter disclosed. It was regarded as a very dangerous railroad crossing, a fact well known to the plaintiff and Pfeutze. They were quite familiar with this situation, having used this crossing frequently for a number of years. They admitted that as they approached the crossing they were engaged in general conversation, and trotted the horse to within 20 or 25 feet of the crossing before the driver slowed him to a walk. They did this when, according to their testimony, they knew that at a distance of about 30 feet from the track they could not see a train coming through the cut from the west a greater distance than 50 feet; though the actual measurement and experiments made demonstrate that 34 feet back from the track a train could have been seen at a distance of about 90 feet. At a distance of 15 feet from the crossing the proof showed that the train could be seen 232 feet. They comprehended the fact on approaching the point of intersection that a train might appear at any time, and therefore they testified that in approaching the crossing they looked and listened therefor; that hearing no signal they drove onto the track without stopping; and just as the horse's forefeet reached the north rail the plaintiff observed the train coming, when the driver applied the whip to the horse and safely cleared the crossing before the engine arrived. The plaintiff, taking alarm, sprang from the vehicle, alighting on the south side of the track, and in the fall received injury to one of his knees, more or less serious, for which injury this action was instituted. If the plaintiff's own negligence or want of due care did not contribute to bringing him into such perilous situation, it is to be conceded that his act in leaping from the vehicle, although he would not have been injured had he remained seated, would not disentitle him to maintain action for damages. When a person, without fault on his part, is brought suddenly into a situation of imminent danger, not admitting of opportunity for the exercise of deliberate judgment as to the better means of escape, culpable negligence is not to be imputed to him for not selecting the better course. If under such circumstances he makes such choice as a person of ordinary prudence placed under like conditions would make, and injury thus comes to him, it would not relieve the party from accountability therefor whose negligent act brought him into such perilous situation. Omaha Water Company v. Schamel, 147 F. 502, 78 C.C.A. 68, loc. cit. The same may be said of the action of Pfeutze in not pulling his horse back off the track when he discovered the approach of the train if his forefeet were already over the first rail, provided he was not guilty of contributory negligence.

The actionable negligence of the defendant charged in the petition is as follows: In propelling said train over said crossing without ringing the bell or sounding the whistle, and without giving or attempting to give any sufficient warning or signal of its approach, when the defendant well knew that it was a most dangerous crossing, and that the ordinary warning of the bell and whistle would be wholly ineffectual to protect persons entering upon said crossing; and in approaching said crossing at a dangerous rate of speed; and failing to maintain a watchman and gates at the crossing, and not providing proper signals giving notice of the approach of trains.

The plaintiff knew that neither watchman nor gates, nor appliances for signals, were kept and maintained at said crossing. Of what avail would the presence of a watchman to operate gates have been in view of the plaintiff's evidence? As the train was not running on schedule time, being about three hours late, a watchman would not have known the moment of its coming. And as the plaintiff and Pfeutze, if they are to be credited, notwithstanding their vigilance, did not discern the approach of the train until the horse was on the near rail, it must be conceded that the watchman, if there, would have been in the same predicament in giving timely warning. If it be said that he could have warned them not to enter upon the track without first stopping, the answer is that they already possessed the same knowledge as would the watchman, that the place itself was a warning of danger, and therefore they should have stopped with or without such outside warning. Any warning by a watchman would have conveyed to them only what they already knew as well as he did. If they could not hear any signals the watchman could not have heard any. They therefore had the same reason for stopping before entering upon the crossing that the watchman would have had for warning them to do so. They knew, on approaching this crossing, that no appliances were employed there by the railroad company for giving signal of the approach of a train, and therefore that they could not rely thereon for their protection and safety. All the more, therefore, should they have depended upon their quickened senses and increased precaution in approaching the crossing.

The allegation respecting the dangerous rate of speed of the train is not supported by any evidence that would have warranted the jury in finding the existence of such fact. The only witness to this issue was one Cooper, who, according to his statement, was about 150 yards northeast of the crossing, following on the same road in the rear of the plaintiff. Remarkably enough, in view of the plaintiff's evidence that they could not see the crossing until they were within about 30 feet of it, this witness claimed that he saw the train 150 yards to the northeast, when it was about 50 feet from the crossing, although he did not see the accident. Indisputably, he had but a mere glimpse of one or two seconds of the train. From which it is manifest that any expression of opinion by him as to its rate of speed was the merest speculation and guesswork. He said he thought it was running from 40 to 45 miles an hour. There was nothing whatever at the instant to fix his mind upon the matter of the speed, and his cross-examination developed that he had never experimented from a side view to determine the rate of speed of a passing train. As said in McGrail v. McGrail, 48 N.J.Eq. 532-536, 22 A. 582, 584:

'Nothing is more uncertain and unreliable than the testimony of witnesses as to the time occupied in a transaction.'

Recognition of such mere guesswork as sufficient to carry the question to the jury of the rate of speed of a train has a long column of injustice to its account. This testimony, doubtless, and properly so, was treated as utterly worthless by the experienced judge who presided at the trial.

The only remaining ground of negligence worthy of consideration is the imputed failure of the defendant to sound the whistle or ring the bell when approaching the crossing. The statute of the state requires that one or the other of such signals should be given at least 80 rods from such public road crossing. The evidence on behalf of the plaintiff was that although they listened they did not hear such signal, as did also the witness Cooper. But the plaintiff's testimony was that on account of the obstruction of the long, high bluff and the adverse direction of the wind blowing at the time they might not have heard the sounds if given. The petition itself alleges that the defendant, on approaching this crossing, knew that 'the ordinary warning of the bell and whistle would be wholly ineffectual to protect persons crossing the said crossing;' and in the brief of counsel for plaintiff it is admitted that 'by reason of the obstruction caused by the bluff it was impossible for them to hear the train until it was dangerously close. ' In view of the rule of law that the servants of the defendant are presumed to have performed their duty in respect of giving the required signal, it devolved upon the plaintiff to overcome this presumption by satisfactory evidence to a reasonable mind. When the plaintiff himself thus, in effect conceded that the whistle or bell, if sounded, probably would not have reached such traveler, it is somewhat remarkable that he should assume the position that he is entitled to recover damages by reason of the failure of the defendant to have given such signal, when the...