Hemingway v. Illinois Cent. R. Co.

• Decision Date: 22 April 1902
• Docket Number: 1,103.
• Citation: 114 F. 843
• Parties: HEMINGWAY v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

114 F. 843

HEMINGWAY v. ILLINOIS CENT. R. CO.

No. 1,103.

United States Court of Appeals, Fifth Circuit.

April 22, 1902

Wm. C McLean, for plaintiff in error.

Edward Mayes (J. B. Harris and J. M. Dickerson, on the brief), for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

This is an action for $11,000 damages, brought by Prince Hemingway, a citizen of the state of Mississippi, against the Illinois Central Railroad Company, a corporation chartered under the laws of the state of Illinois. The action is based on the alleged wrongful and negligent act of the defendant in causing the death of Frank Hemingway, the infant son of the plaintiff. Such right of action is given to parents for the death of the minor child, caused by the wrongful or negligent act of another, by the law of the state of Mississippi, where it is alleged that the wrong was committed. Laws Miss. 1898 p. 82, c. 65. By a law of that state approved March 18, 1896 all railroad companies having the right of way are allowed to run locomotives and cars through cities, towns, and villages at the rate of six miles an hour, and no more; and it is provided that 'the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than six miles an hour through any city, town or village ' Laws Miss. 1896, p. 76. By another statute each locomotive engine is required to be provided with a bell and a steam whistle, which can be heard distinctly at a distance of 300 yards; and it is provided that the company 'shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or street; and the bell shall be kept ringing, or the whistle shall be kept blowing, until the engine have (has) stopped or crosses the highway or street. ' Ann. Code Miss. Sec. 3547. The declaration charges that the defendant was running the engine and train in violation of these statutes, and that Frank Hemingway was killed by its train at a public crossing in the town of Como, Miss. The defendant pleaded: (1) That it was not guilty of the supposed wrongs and injuries charged; and (2) that Frank Hemingway was guilty of contributory negligence, in that he failed to exercise ordinary care and prudence in going upon the railroad track without stopping the wagon, and without looking or listening for the approaching train, which he could have seen and heard, and that he thereby contributed to his own injury and death. Issue was joined, and the case tried on these pleas. After evidence had been offered by both the plaintiff and defendant, counsel for the defendant moved the court to instruct the jury to find a verdict for the defendant. The trial court granted this motion, instructing the jury to return a verdict for the defendant, to which action of the court the plaintiff duly excepted. A verdict was returned for the defendant, and a judgment entered thereon, and the case is brought to this court by the plaintiff on a writ of error. It is assigned here that the circuit court erred in directing a verdict for the defendant.

The facts may be briefly stated: On the 31st of March, 1900, Frank Hemingway, 18 years of age, while attempting to cross defendant's railway track, was run over and killed by a train controlled by defendant's servants. The accident occurred about dark, at a public crossing in the corporate limits of the town of Como, Miss. The highway or street on which the deceased was driving a wagon runs east and west, and crosses the railway which runs north and south. The train which killed deceased came from the south. Beginning south of the crossing, the railway curves eastwardly. For about 300 yards south of the crossing the track runs through a cut 8 or 10 feet deep. The street east of the crossing, for about 100 yards, is in a cut four or five feet deep. A traveler on the highway from the east, as he approached the crossing, would have between him and a train coming from the south some shrubs, a fence, and a house, and the train would be in the cut on the track when within 300 feet of the crossing, and the traveler in the cut in the highway. Such were the natural features of the place where the accident occurred. Frank Hemingway was standing up in the wagon, and driving. Heywood Robinson and John Davis were sitting in the wagon, one facing the rear of the wagon and one facing south. The wagon approached the crossing, the mules going in a trot. It had in it two 'iron-toothed harrows, two baskets of clothes, a barrel of flour, and some meat, sugar, and coffee. ' As the wagon neared the crossing, 'it slowed up to a walk,' but did not stop. One of the occupants of the wagon, before nearing the crossing, said, 'I reckon it is about train time,' and deceased said 'he didn't reckon it was, but didn't know exactly what time the train came. ' John Davis, who was sitting with his face towards the south, testified that his face was in the direction the train was coming from; that, as the wagon approached the crossing, he looked and listened for the train 'all the way along,' and also 'just before he got there.' The train approached the crossing through the cut at the rate of '35 or 40 miles an hour. ' As to whether the whistle was blown and the bell rung as the crossing was approached there is conflict in the evidence. Travis Taylor, who examined the crossing before testifying, said that a traveler must get within 'about 6 feet' of the railroad before he could see an approaching train; that, after getting within 6 feet of the track, he could see the headlight of an approaching engine 'about 150 yards.' John Davis was the first to see the train. 'I was the first to see it. I said, 'Lord, there comes the train.' and about the time I said that I jumped out. * * * About the time I hit the ground the train struck the wagon. ' Heywood Robinson also jumped out, and was not hurt. The wagon was smashed, the mules killed, and Frank Hemingway so injured that he died in a few hours. It is conceded that the defendant was guilty of negligence in running its trains through an incorporated town at a speed forbidden by the statute. Railroad Co. v. Toulme, 59 Miss. 284; Nelson v. Railroad Co., 40 C.C.A. 673, 100 F. 731.

The controlling question in the case is: Does the evidence show such contributory negligence on the part of the deceased as left nothing to be passed on by the jury, but required the court to instruct them as matter of law that the plaintiff could not recover? The burden of proof is on the defendant to show that the deceased was negligent, and that his negligence contributed to the injury which resulted in his death. Coasting Co. v. Tolson, 139 U.S. 551, 11 Sup.Ct 653, 35 L.Ed. 270; Railroad Co. v. Volk, 151 U.S. 73, 77, 14 Sup.Ct. 239, 38 L.Ed. 78; Hough v. Railroad Co., 100 U.S. 213, 225, 25 L.Ed. 612; Railroad Co. v. Harmon's Adm'r, 147 U.S. 581, 13 Sup.Ct. 557, 37 L.Ed. 284. This rule governs in the United States courts, irrespective of the decisions in courts of the state where the federal courts are held. 2 Fost.Fed.Prac. (3d Ed.) p. 880, Sec. 375. In the absence of all evidence on the subject, it would not be presumed that the deceased did not exercise proper care, for he had the greatest incentive to caution to protect his own life. Improvement Co. v. Stead, 95 U.S. 161(4), 24 L.Ed. 403. But the defendant can, of course, avail itself of the evidence offered by the plaintiff as tending to show the contributory negligence of the deceased. Railroad Co. v. Horst, 93 U.S. 291(9), 23 L.Ed. 898. But on all the evidence the rule of the federal courts is that the burden of proof is on the defendant to sustain by a preponderance of evidence its defensive plea of contributory negligence. Railroad Co. v. Mares, 123 U.S. 710, 8 Sup.Ct. 321, 31 L.Ed. 296; Beach, Contrib. Neg. Sec. 426. In judging the deceased's conduct and considering whether it was prudent or negligent, it must be estimated in the light of all the circumstances surrounding him, and in view of what he had the right to expect of others. He is not blamable if the injury has resulted from the act of another, which he could not reasonably have anticipated. Railroad Co. v. Van Steinburg, 17 Mich. 99, 119. It would not be negligence in the deceased to act on the assumption that the defendant would not run its trains in violation of the state law. Hasie v. Railway Co., 78 Miss. 413, 414, 28 So. 941. A railroad crossing a highway or street on the same level imposes duties both on the railroad company and the traveler on the highway. The train necessarily has the preference and right of way. It is required...