Holland v. Chicago, M. & St. P.R. Co.

• Decision Date: 01 January 1883
• Citation: 18 F. 243
• Parties: HOLLAND v. CHICAGO, M. & ST. P.R. CO.
• Court: U.S. District Court — District of Minnesota

18 F. 243

HOLLAND v. CHICAGO, M. & ST. P.R. CO.

United States Circuit Court, D. Minnesota.

June Term, 1883

The case is fully set out in the opinion of the court. At the conclusion of plaintiff's testimony the defendant moved the court to instruct the jury to find a verdict for the defendant, on the ground that the plaintiff, on his own showing, contributed to the injury by his own negligence, and therefore cannot recover. Plaintiff's counsel urged that he was entitled to recover on three grounds:

First. That defendant was obliged to keep his premises in a proper and safe condition, so as not to expose his employes to any unusual or unexpected danger which might have been guarded against by proper diligence on his part; citing Hough v Railroad Co. 100 U.S. 213; Wabash Ry. Co. v McDaniels, 11 Amer. & Eng. Ry. Cas.; Buzzell v Laconia Manuf'g Co. 48 Me. 116; Dick v. Railroad Co. (Ohio,) 8 Amer. & Eng.Ry.Cas. 101.

Second. That where an employe's attention is occupied by the work he is engaged in, he is entitled to rely upon the employer using diligence and care to protect him while thus engaged and that the plaintiff's attention was drawn to the necessity of reaching the toolchest where the tools were with which he was to work for the defendant, and that the defendant, having failed to give signals or warning of the approaching passenger train, was derelict in its duty to this plaintiff, and plaintiff is entitled to recover therefor; citing Goodfellow v. Railroad Co. 106 Mass. 461; Snow v. Railroad Co. 8 Allen, 441.

Third. That if any care of diligence in looking out for the approaching train and guarding against accident is shown to have been used by plaintiff, the question of the sufficiency of the care and diligence is a question for the jury, and not one for the court to pass upon, and therefore it having been shown that the plaintiff did look up and down the track before the freight train passed, the same was an act of care and diligence on his part; and the defendant having been guilty of negligence in not give any signals or warning of the approaching train, the whole question of diligence or negligence should be submitted to the jury; citing Johnson v. Bruner, 61 Pa. 58; Kellogg v. Railroad Co. 79 N.Y. 72; Chaffee v. Railroad Co. 104 Mass. 108.

S. L. Pierce, for plaintiff.

Bigelow, Flandrau & Squires, for defendant.

SHIRAS J.

Since the adjournment of the court last night I have considered the motion made in this case of Holland v. Chicago, Milwaukee & St. Paul Railway Company. The motion was made at the close of the plaintiff's testimony that the court instruct the jury that under the evidence as submitted by the plaintiff he has failed to make out a case, and therefore it is their duty to return a verdict for the defendant. The testimony is this case presents no dispute as to the question of fact; the case really turns upon the testimony of the plaintiff given directly by himself. With regard to the witnesses the case shows no disagreement among them as to the facts, and as to the facts as shown by the plaintiff's own testimony, with regard to which there is no dispute. Now, of course, the general rule applies to this case, that the plaintiff to recover must show fault or negligence on the part of the defendant causing the injury complained of, and that would not enable him to recover if it appears from the testimony that the plaintiff himself has been guilty of contributory negligence which would defeat his cause of action. The rule of law being briefly, state, is that where the evidence shows that both parties are in fault there can be no recovery for the plaintiff.

It is clearly in testimony that Holland, this plaintiff, was in the employ of the railroad company as a laborer, engaged in the excavation of a certain part of the defendant's road known as the short line; that the tools which were used in this excavation were kept on one side of the track in a tool-chest, and it is conceded it was a proper place or sit for said tool-chest, which was provided for that work upon the bank. It seems that the place where this tool-chest lay was on the opposite side of the bank from where the excavation was being done, and across the railroad track, and at that place there were three or four tracks; as to the number, whether three or four, the evidence leaves in doubt. The plaintiff came down to his work in the morning, and when he came there, in order to reach the tool-chest, he had to cross these tracks. He went that way across the tracks the first day to obtain his tools, and the second morning he came down the same way to go to his work, where, as far as the evidence shows, he had a perfect right to cross. He went there in order to go to the place where the tools were to do the work which he had engaged with the railroad company to do. His testimony shows that as he came down that morning he discovered upon the first track,-- a side track, or whatever it may be termed,-- it was the one nearest the embankment; that there were some empty flat cars that were being pulled out of the way, or had just gone out of the way, so that he could get past the track without difficulty. Then, upon the next track, when he came to that, he looked up and down the track for the purpose of seeing whether there was anything in the way to prevent his crossing, and coming in one direction he saw a freight train that was coming down on that second track. The evidence shows that from where he was he could see down the track towards the city, a distance of 1,500 or 1,600 feet, provided there was nothing in the way, and no cars to interrupt his sight. As far as the topography of the ground and the location of the track were concerned, he could see that distance. He came down to the track, and looked up and down, and saw this freight train coming down on the second track, and, using his judgment and calculation, he determined not to pass over the track until the freight train passed, and therefore waited for the freight train to go by, so that he could pass by it. He states it took about a couple of minutes, or some such time as that, for the freight train to pass by, so that he could pass over that track. After the freight train had gone by on that track, he then passed immediately in the rear of that train which brought him to the third track, which was the one where the passenger train was, and where the accident occurred. His testimony shows that when he came to that, and when he passed over the second track, he felt so confident that there was no danger of anything to interfere with his doing so, that he walked straight forward onto the main track, and in doing so walked right in front of the train of cars, and was injured.

In regard to all these facts there is no dispute, and there are no conclusions to be drawn from them, so far as the facts are concerned. The supreme court of the United States, in the decision in 95 U.S. 697, (Railroad Co. v. Houston,) which was referred to by counsel in the argument, gives the rule to be observed, which is also fully set forth in the opinion of Judge McCRARY in Schofield v. C.,M. & St. P. Ry. Co. 2 McCrary, 268; (S.C. 8 F. 488.) Supposing the evidence just as it stood, were submitted to the jury, and the jury should find affirmatively for the...