Great Northern Ry. Co. v. Harman

• Decision Date: 16 November 1914
• Docket Number: 2372.
• Citation: 217 F. 959
• Parties: GREAT NORTHERN RY. CO. v. HARMAN.
• Court: U.S. Court of Appeals — Ninth Circuit

217 F. 959

GREAT NORTHERN RY. CO. v. HARMAN.

No. 2372.

United States Court of Appeals, Ninth Circuit.

November 16, 1914

Veazey & Veazey, of Great Falls, Mont., for plaintiff in error.

Maury Templeman & Davies, of Butte, Mont., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff had been working as a carpenter in the employment of certain railroad contractors, who were engaged in relining a tunnel on the defendant's road. On being discharged from his work, the plaintiff took a push car belonging to the defendant, placed thereon his tool chest blankets, and personal baggage, and, accompanied by another man, proceeded to push the car along he track of the defendant from the tunnel to Basin, a station where he expected to take a train in the direction of Butte. He claimed the right so to use the push car on the ground that the railroad track was the only available way to Basin, that if he took the county road he would have to wade a creek, he having no money with which to pay for a livery team, that the track from the tunnel to Basin was a general thoroughfare for employes on the tunnel work, and that the push car had regularly been used by them in carrying emergency supplies from Basin to the tunnel. While on his way, and while he and his companion were pushing the car around a curve, the plaintiff saw a train 400 or 500 feet ahead, approaching at a speed variously estimated by the witnesses at from 20 to 45 miles an hour. While he was diligently endeavoring to remove the push car and its load from the track, and when he had almost succeeded in doing so, the train struck the push car driving it against the plaintiff, and seriously injuring him.

The court below ruled that the plaintiff was at the time of the accident a trespasser upon the defendant's tracks, and that in using the push car as he did he was guilty of contributory negligence. The plaintiff's action for damages, however, was tried upon the theory that the defendant had 'the last clear chance' to avoid injuring the plaintiff, and that it negligently failed in its duty so to do.

It is assigned as error that the court denied the defendant's request for a peremptory instruction to the jury to return a verdict in its favor. On a careful consideration of the evidence we are not convinced that it was error to deny the request. There was evidence tending to show that, after the engineer of the train discovered the plaintiff's danger, he had ample time in which to bring the train to a stop before reaching the place where the plaintiff was. In view of such evidence, the question whether or not the defendant was guilty of negligence in the matter charged was properly submitted to the jury.

The defendant contends that the wrongful and unlawful conduct of the plaintiff, involving moral turpitude, placed him beyond the law of care, and that the defendant owed him no duty to avoid injuring him, even after his perilous position was seen. No authority is cited which sustains so harsh a doctrine. In Missouri & Pac. Ry. Co. v. Weisen, 65 Tex. 447, the court said:

'A man does not forfeit his life, or his right to remain whole, by going where he has no right to go, or being where he has no business.'

Cases are cited in support of the proposition that one who is engaged in violation of law cannot recover if his own illegal act was an essential element of his case. In the case at bar the plaintiff was engaged in no violation of a statute. It is true that he was a trespasser, but notwithstanding that fact the defendant's employes in charge of the operation of the train owed him the duty of ordinary care as soon as his position of danger was actually seen and appreciated. A cause of action arose in his favor, if the defendant actually knew of his peril and thereafter failed to exercise ordinary care to avoid injuring him; and the plaintiff's contributory negligence cannot defeat the action, if it can be shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequences of that negligence. Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485; Chunn v. City & Suburban Ry. Co., 207 U.S. 302, 28 Sup.Ct. 63, 52 L.Ed. 219; Turnbull v. N.O. & C.R. Co., 120 F. 783, 57 C.C.A. 151; Herr v. St. Louis & S.F.R. Co., ...