Hickey v. Missouri Pacific Railroad Corporation

• Decision Date: 22 September 1925
• Docket Number: No. 6940.,6940.
• Citation: 8 F.2d 128
• Parties: HICKEY v. MISSOURI PACIFIC RAILROAD CORPORATION IN NEBRASKA.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 128 (1925)

HICKEY v. MISSOURI PACIFIC RAILROAD CORPORATION IN NEBRASKA.

No. 6940.

Circuit Court of Appeals, Eighth Circuit.

September 22, 1925.

Francis S. Howell, of Omaha, Neb. (William R. Patrick, Edward P. Smith, William A. Schall, and Frank E. Sheehan, all of Omaha, Neb., on the brief), for plaintiff in error.

Yale C. Holland, of Omaha, Neb. (E. J. White, of St. Louis, Mo., and J. A. C. Kennedy, of Omaha, Neb., on the brief), for defendant in error.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

This is an action to recover damages for the death of Edward Hickey, claimed to have been caused by negligence of the defendant in error, hereafter called defendant. The specific negligence relied upon was the running of one of defendant's passenger trains over a public highway crossing without giving signals of warning. The trial court directed a verdict for the defendant. Writ of error has brought the case here.

Plaintiff in error, hereafter called plaintiff, is a son of the deceased. He testified, in substance, as follows: On January 25, 1922, about 3 p. m., Edward Hickey and plaintiff were driving west in an automobile along the county road which crosses the railroad track of the defendant about a mile and a half north of Springfield, Neb. The railroad track at this point runs north and south and is straight for about 1,060 feet north of the crossing. The automobile was a Buick roadster, a left-hand drive car. It had side curtains, in which were isinglass windows. The curtains were drawn and buttoned up. The car weighed 2,900 pounds, and was owned by the father. The plaintiff, who was about 30 years of age, was driving for his father and upon his father's business. Both father and son were well acquainted with the crossing and the surrounding country. At any place along the highway, from a point 500 feet east of the crossing to a point 174 feet east, a person driving an automobile could see a train approaching the crossing from the north at any place on the railroad track for a distance of 1,400 to 1,600 feet. Going west toward the railroad track from the 174-foot point on the highway, the view of the railroad track north of the crossing was partially or wholly obstructed by the natural contour of the land, until a point was reached in the highway about 20 feet east of the east rail of the railroad track, when the view to the north was again unobstructed.

Plaintiff was an experienced driver. His hearing and eyesight were good. At a point about 500 feet from the crossing he looked and listened for a train. He saw none and heard no signal. The automobile was then going from 15 to 18 miles per hour. He continued to look and listen until he passed the point 174 feet distant from the crossing. At this point the automobile was going about 10 miles per hour, and was coasting, as there was a gentle downgrade. Plaintiff continued to listen, but heard no signals. The automobile was making no noise. Upon reaching the point 20 feet from the crossing, the automobile was going about 8 miles per hour, still coasting. At this point plaintiff again looked, and this time he saw the train about 200 feet distant, approaching the crossing from the north. He applied the foot brake and the emergency brake. Both were in good condition and responded. The speed of the car was checked slightly, but the car skidded ahead toward the track. When the front wheels were almost on the first rail, plaintiff threw the "clutch in gear" and applied the power. The car picked up a little, moved forward a few feet, and was hit near its rear end by the locomotive.

Plaintiff knew when the car began to skid that this was caused by ice in the road, but he had not known of any ice until that time. Had it not been for the ice, he could have stopped the car in 8 or 9 feet.

He was unable to state whether his father looked or listened while they were approaching the crossing.

Other witnesses for the plaintiff testified that there was ice in the road for a distance of 15 or 20 feet back from the railroad track, and that, after the accident, they saw marks on the ice where the wheels of the automobile had skidded. No one of the witnesses was able to state whether the ice extended further back than 20 feet.

One witness, who was on the railroad train, testified that no signals were given as the train approached the crossing. The same witness testified that the train was going at the time about 45 miles per hour.

On behalf of the defendant, there was testimony that a person in an automobile had a view of the railroad track for 1,200 to 1,400 feet north of the crossing while driving from a point on the highway 500 feet east from the crossing down to a point about 102 feet east, and that then the view was obstructed until a point 40 feet east from the crossing was reached.

There was also testimony on behalf of the defendant that the signals of the approach of the train to the crossing were given, both by bell and by whistle; and that the train was going from 25 to 30 miles per hour. There was also testimony tending to contradict the testimony of plaintiff's witnesses as to the presence of ice in the road.

The ground upon which the trial court directed a verdict for the defendant was that the negligence of the railroad company, even conceding that it existed, was not the proximate cause of the accident. We think this ruling was correct.

What constitutes proximate cause has been stated by this court a number of times, and recently in Mendelson v. Davis, 281 F. 18, 21:

"In order to find that negligence is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence. If a new force intervened between the negligent act and the injury, sufficient of itself to cause the injury, the negligent act is too remote to warrant a recovery. Scheffer v. Washington City, etc., R. Co., 105 U. S. 249, 26 L. Ed. 1070; Empire State Cattle Co. v. Atchison, etc., Ry. Co., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Teis v. Smuggler Mining Co., 158 F. 260, 85 C. C. A. 478, 15 L. R. A. (N. S.) 893; Ketterer v. Armour & Co., 247 F. 921, 160 C. C. A. 111, L. R. A. 1918D 798."

In Davis v. Schroeder, 291 F. 47, 49, 50, this court said:

"Not all negligence is actionable. It is only so when the injury or the loss is the proximate result thereof. The proximate result must be the natural and probable consequence, which ought to have been foreseen or reasonably anticipated in the light of the attendant circumstances. That is the rule laid down by this and other courts, with some slight variance in the language by which the thought is expressed. * * * From these citations the clear rule is apparent that an injury that could not have been reasonably anticipated by a person of ordinary prudence and intelligence as the probable result of the act of negligence is not actionable; nor is such injury actionable if it would not have resulted from the alleged negligence, but for the interposition of some new and independent cause that could not have been reasonably anticipated."

See, also, Stahl v. L. S. & M. S. Ry. Co., 117 Mich. 273, 75 N. W. 629; Keel v. S. A. L. Ry. Co., 122 S. C. 17, 114 S. E. 761.

Assuming the truth of the testimony for the plaintiff as to the presence of ice in the highway, we are of the opinion that the ice and not the negligence of the defendant was the proximate cause of the accident. When the plaintiff was at least 20 feet from the crossing, he admittedly became aware of the approaching train. He then had ample time to stop the automobile. He testified, "I saw the train coming in time to have stopped the car if it had not been for the ice." Again, "There is no question in my mind but that when I first saw the train I had sufficient distance in which to stop the car and avoid the accident but for the ice." And again, "but for the ice * * * I could have stopped that car in 8 or 9 feet."

It is claimed on behalf of the plaintiff that, if the usual signals had been given, he would not have driven the automobile so near the crossing as 20 feet before applying the brakes. Whether this claim is anything more than an afterthought may be open to...