Dunworth v. Grand Trunk Western R. Co.

• Decision Date: 24 October 1903
• Docket Number: 959.
• Citation: 127 F. 307
• Parties: DUNWORTH v. GRAND TRUNK WESTERN RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

127 F. 307

DUNWORTH v. GRAND TRUNK WESTERN RY. CO.

No. 959.

United States Court of Appeals, Seventh Circuit.

October 24, 1903

James Hamilton Lewis, for plaintiff in error.

Kenesaw M. Landis, for defendant in error.

This action is brought by the plaintiff to recover damages sustained by reason of the death of her intestate, caused, as alleged, by the wrongful acts of the defendant at a street crossing of its railway. The negligence charged was that the bell of a locomotive engine approaching and crossing South Halsted street was not rung or its whistle sounded, that no headlight was exhibited, and that the gates were not lowered. There was a plea of the general issue. At the trial, upon the conclusion of the evidence for the plaintiff, the court directed the jury to render a verdict for the defendant, for which supposed error the cause is brought here for review.

The two tracks of the defendant's railway running east and west intersect Halsted street, in the city of Chicago, at right angles, and for a long distance the tracks are straight. The north track is used by west-bound trains; the south track by east-bound trains. Ten feet south of the south rail of the south track are gates, and from eight to ten feet south of the gates, and on the west side of the street, is a small station. From this station the view to the west along the tracks is unobstructed, the space between the south rail and the gates and the station being unoccupied. At the west line of the street there is a switch track which curves to the south, and then to the west, running for some distance parallel to the south track, about on a line with the station house. The street car line of the Chicago City Railway Company located upon Halsted street crosses these railway tracks. The deceased was a conductor in the service of that company. The car upon which he served was on a trip north and had come to a stop south of the railway gates, to allow the conductor to go forward, according to his customary duty to ascertain if the way was clear and to signal the car when the way should be clear. The evidence is contradictory whether the gates were lowered before Dunworth went upon the crossing. As he passed the gates a west-bound freight train was approaching Halsted street from the east upon the north track, and was some 300 feet away. Dunworth went to the north track, and, in the language of a witness for the plaintiff 'when the conductor saw the gates coming down and the train approaching he came back to the south track and stood on the track. ' He took a position between the rails of the south track, where he remained for from two to four minutes, looking northeast and north, watching the freight train as it approached and was passing. At this time an engine coming from the west approached on the south track at a speed of eight miles an hour, backing up, its bell not being rung or its whistle sounded, and without a headlight on the tender of the engine, and struck and killed Dunworth. This was before the freight train had passed. The time was December 4, 1901, at about 7 o'clock in the evening. The night was dark, but the ground was covered with snow to a depth of two inches, making 'it look quite light.' The locality was also lighted by an electric arc light suspended over the center of Halsted street.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS Circuit Judge (after stating the facts as above.

If the facts, or the inferences to be drawn from them, with respect to contributory negligence, be doubtful, the case is one for the jury. But if from the facts disclosed the conclusion follows as a matter of law that there can be no recovery in any proper view of the facts, it is the duty of the trial court to direct a verdict. Schofield v. Railway Company, 114 U.S. 615, 5 Sup.Ct. 1125, 29 L.Ed. 224; Railway Company v. Converse, 139 U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Railway Company v. Ives, 144 U.S. 408, 417, 12 Sup.Ct. 679, 36 L.Ed. 485; Gardner v. Michigan Central Railroad Company, 150 U.S. 349, 361, 14 Sup.Ct. 140, 37 L.Ed. 1107; Warner v. Baltimore & Ohio Railway Company, 168 U.S. 339, 18 Sup.Ct. 68, 42 L.Ed. 491; District of Columbia v. Moulton, 182 U.S. 576, 579, 21 Sup.Ct. 840, 45 L.Ed. 1237.

The facts in the case at bar are without contention, and were disclosed by the evidence of the plaintiff. It was the duty of the deceased to go upon the crossing to see if a train was approaching from either direction, and to signal the motorman if and when the way was clear for the crossing of the street car. But the performance of this duty did not absolve him from the duty of care with respect to his own safety. He was there to look for danger. That was his duty, not only with respect to the service in which he was engaged, but with respect to himself in the performance of that duty. These duties were concurrent. After the gates were lowered the street car could not cross until after the passage of the freight train. The deceased had then no duty to perform with respect to the street car until the train had passed and the gates had been raised. Until that should occur, duty to himself, if not to the railway company, required that he should stand in a place of safety. There were ten feet in width of unobstructed space between the south rail of the south track and the gates, where he could have stood in absolute safety and in full view of the situation. Instead he took his position between the rails of the south track with his back or side to the west, from which direction alone danger upon that track was to be apprehended, and, without looking to the west,...