Garlich v. Northern Pac. Ry. Co.

• Decision Date: 03 August 1904
• Docket Number: 2,040.
• Citation: 131 F. 837
• Parties: GARLICH v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F. 837

GARLICH v. NORTHERN PAC. RY. CO.

No. 2,040.

United States Court of Appeals, Eighth Circuit.

August 3, 1904

Entering the city of St. Paul from the west, the roadbed and tracks side by side, and near together, of the Chicago, Milwaukee &amp St. Paul Railway and the Chicago, St. Paul, Minneapolis &amp Omaha Railway pass along the bank of the Mississippi river upon a narrow bench of land between the bank of the river (which is 10 feet or more above the water) and the foot of a high, steep bluff reaching the general level of the city in that vicinity. This narrow bench of land extends from some distance east of the line of Robert street westward beyond the line of Wabasha street, and both of said streets are continued as thoroughfares upon bridges from the top of the bluff, over, and more than 30 feet above, said railroad tracks, and across the river. The whole of this narrow bench of land between the line of the said two streets and for a distance on either side has been for many years, and still is, occupied by said railroad tracks, and used for railroad purposes, and not for road vehicles. But between the margin of the river bank and the nearest railroad track is a narrow strip of land varying from about 5 feet in width near the Wabasha Street Bridge to 25 feet in width near the Robert Street Bridge, used as a footpath by persons having occasion to pass there. When the city was platted, long before there were railroads in the country, this narrow bench was platted as a public street or levee, and was so used for a time, but was long ago abandoned to the use of railroads. On August 14 1902, the plaintiff, without any special occasion or object, walked westward from the Union Depot, along the river bank and upon said pathway beyond the Robert Street Bridge and nearly to the Wabasha Street Bridge, where he turned, and retraced his way along the same path. A freight train going westward was then passing with its usual noise on the second track from him. Plaintiff turned, and looked back along the track nearest him, which was visible for about 500 feet, when further view was cut off by a curve and obstructions. Seeing no train or engine on this track, plaintiff proceeded eastward on said path at an ordinary walk for about 50 paces, when, having come within about 100 feet of the Robert Street Bridge without having taken any further precaution, at a place where said pathway was 11 feet wide, he was struck on the left side by the end of the pilot beam of defendant's engine, which, with a passenger train, was coming from the west on said nearest track at a speed of about 15 mines an hour; and was seriously injured. The engineer, who was called by plaintiff, testified that when he came around the curve and saw the plaintiff the latter was on the path 6 or 8 feet from the track, and that when the engine came near plaintiff made a side step towards the track, bringing himself so near that he was struck by the end of the pilot beam; and that when plaintiff, by such side-stepping, suddenly came dangerously near to said track, the engine had so nearly reached the place of collision that it could not be stopped before striking the plaintiff. No bell had been rung or whistle blown on the engine as it approached. There was no contradiction in the testimony, and at the close of plaintiff's evidence the defendant moved that the court direct the jury to render their verdict in favor of defendant, on the ground that, even if the defendant was negligent, the plaintiff was guilty of such contributory negligence as barred his right to recover in the action. The court granted the motion, and by its direction such verdict was rendered.

C. N. Dohs and E. R. Wakefield (D. A. Haggard, on the brief), for plaintiff in error.

L. T. Chamberlain (C. W. Bunn, on the brief), for defendant in error.

Before VAN DEVANTER and HOOK, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

1. The cross-examination of the witness Root was not extended beyond the particular circumstances of the facts about which he had been examined by plaintiff's counsel. If the disclosure of such circumstances, explanatory of the very matters about which he had testified on his direct examination, also tended to establish a defense to the action, such tendency constituted no valid objection to the cross-examination. Resurrection Gold Min. Co. v. Fortune Gold Min. Co. (C.C.A.) 129 F. 668.

2. The Minnesota statute offered in evidence is a private act; and neither it nor the ordinances of the city of St. Paul, also offered in evidence, had been pleaded, and they were rightly excluded. 1 Chitty's Pl. 238; 20 Encyc.Pl.& Prac. 596 and notes; ...