Graven v. MacLeod

• Decision Date: 27 March 1899
• Docket Number: 609.
• Citation: 92 F. 846
• Parties: GRAVEN v. MacLEOD et al.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 846

GRAVEN v. MacLEOD et al.

No. 609.

United States Court of Appeals, Sixth Circuit.

March 27, 1899

This is an action for the negligent killing of Alpha Graven, the husband and intestate of Minnie Graven, the plaintiff in error. The deceased was a passenger upon the line of electric railway operated by defendants as receivers, extending from Louisville, Ky., west to the neighboring city of New Albany on the Indiana side of the Ohio river. This line of railway consists of two parallel tracks, one of which is used exclusively by trains east bound, and the other by trains running in the opposite direction. The deceased lived in the western part of the city of Louisville, and was accustomed to travel between the city and his residence upon defendant's railway; taking and leaving the cars at its Twenty-Sixth street station, near which he lived. That station consisted of two platforms, one on each side of the right of way. Each was 118 feet in length, and each began at a point east of Twenty-Sixth street, and extended to the eastern line of that street. The platform on the south side of the railway was intended for the convenience of passengers taking or leaving trains east bound, while the opposite platform was along the side of track used by west-bound trains, and was intended for the use of passengers taking or leaving trains bound west. On the latter was a small box house, used for the sale of railway tickets during certain hours of the day. The space between the two platforms was occupied by two parallel tracks, the space between the tracks being about eight feet. The evidence tended to show that the space between the rails was filled in smoothly with cinders but the evidence was conflicting as to the condition of the space between the two tracks. On the afternoon of May 10 1894, Graven took a train at Seventh street, Louisville purposing to return to his residence. This train, was due to arrive at Twenty-Sixth street at 5:58 p.m. The sun was not down, but a storm of wind and rain darkened the afternoon. This train, like all others operated on the road, consisted of a motor car and a trailer. Graven took his place in the motor car. As the train was slowing up for Twenty-Sixth street, he came out of his car, and stood under its rear hood, and, before it had come to a stop, jumped off, away from the platform, and undertook to cross the east-bound track diagonally, in the direction of Twenty-Sixth street, on which he lived. Just as he was about to step on that track, he was struck and knocked down by the corner of a passing east-bound train, and sustained injuries resulting in death.

In respect to the negligence of the railway company, there was evidence tending to show: (1) That there was a rule of the company which provided that 'all trains and engines on either track must approach Twelfth, Eighteenth, Twenty-Sixth and Twenty-Ninth streets under full control, and keep a careful lookout for passengers crossing to and from Kentucky and Indiana trains, and must not under any circumstances pass these stations while Kentucky and Indiana trains are receiving and discharging passengers.' (2) There was evidence tending to show that the train from which Graven debarked was several minutes behind time, and that the schedule passing point for that train to pass the east-bound train was between Twenty-Ninth and Thirty-First streets; but, being behind time, the east-bound train was due to pass at any moment. There was also evidence that under the schedules a train bound east passed Twenty-Sixth street every 15 minutes. (b) There was evidence tending to show that the train which collided with deceased did not approach this station under 'full control,' but was approaching at a speed estimated as high as 15 miles per hour, and that no effort was made to check or stop until Graven' danger was observed. There was conflicting evidence as to whether any warning was given of its approach to this station. (4) There was evidence tending to show that the rule requiring trains not to pass without stopping, unless there were passengers to put off or take on. (5) There was evidence tending to show that Graven was observed as soon as he stepped off the standing train, and every effort made to stop the train which was possible, but without avail. (6) There was evidence that when electric trains were first put on this railway the cars were provided with gates, which the trainmen were required to keep so closed that passengers could not take or leave the cars except by way of the platforms provided for that purpose. But the evidence also showed that these gates had been removed some time before this accident. (7) The evidence tended to show that no warning or other notice had ever been posted in the cars, or about the stations, forbidding passengers from alighting away from the platforms, or requiring them to use the platforms in getting on or off of trains. (8) There was conflicting evidence as to whether the employes had instructions to warn or forbid passengers from alighting away from the platforms, and evidence tending to show that, if employes had any duty in this respect, imposed by any rule of the company or of the receivers, the rule was generally disregarded, and passengers suffered, without objection, to leave the cars on or away from the platform, as suited their convenience. (9) Graven lived south of the station. His train came in on the northern track. There was evidence tending to show that he customarily left the train on the south side (that is, the side away from the platform provided for the use of west-bound trains), and crossed the east-bound track between the platforms to Twenty-Sixth street, and evidence tending to show that passengers living south of the railway customarily left the train away from the platform, and crossed the east-bound track diagonally to Twenty-sixth street, as Graven undertook to do on this occasion.

Respecting the defense of contributory negligence, there was evidence as follows: (1) That, before stepping off the car, Graven pulled his coat collar up around his neck, and pulled a soft-brimmed hat down over his face, for the purpose of shielding his eyes and face from the wind and rain which was coming from the west; that being the direction in which his route took him. There was evidence tending to show that as he stepped out into the storm he bent or bowed his head, as if to shield his face. The evidence also tended to show that while standing under the hood of the car his back was to the west, but as he stepped down onto the track he was facing west, the direction from which the colliding train came. (2) The evidence conclusively established that the space between the train from which he debarked and the east-bound track was ample to protect him from collision, and that the distance from the spot on which he landed, when he stepped from his car, to Twenty-Sixth street,...