Illinois Cent. R. Co. v. Ackerman

• Decision Date: 10 April 1906
• Docket Number: 2,157.
• Citation: 144 F. 959
• Parties: ILLINOIS CENT. R. CO. v. ACKERMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F. 959

ILLINOIS CENT. R. CO. v. ACKERMAN.

No. 2,157.

United States Court of Appeals, Eighth Circuit.

April 10, 1906

W. J Knight (J. M. Dickinson, on the brief), for plaintiff in error.

D. J Lenehan (L. H. Hurd, on the brief), for defendant in error.

Before VAN DEVANTER, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

There was substantial evidence of the negligence of the railroad company in respect of the speed of the cars and the absence of signals, and the verdict of the jury in favor of the plaintiff precludes further inquiry into that matter. But the negligence of the railroad company did not absolve the deceased from his duty to look and listen before venturing upon the track, and the evidence conclusively shows that by his failure to perform that duty he was guilty of negligence contributing directly to his death.

The employes of the railroad company were engaged in pushing seven freight cars southward toward a much travelled street in Dubuque, Iowa, crossing which were six railroad tracks operated as part of the main line and yards of the company. The engine was upon the north end of the string of cars and was moving backwards. There was a brakeman on the car next to the engine but none near the end of the cars nearest the crossing. No flagman was stationed at the crossing. The deceased was 23 years of age, intelligent, and in full possession of his faculties. He was and had been for more than a year in the service of Wells, Fargo & Co., as the driver of an express wagon. He was thoroughly familiar with the railroad crossing, was accustomed to drive over it several times each day, and knew of the frequent passage of trains and the movement of cars in switching. The horse attached to the wagon was tractable, gentle, and easily controlled. The accident occurred in the daytime. The deceased drove eastward upon the south side of the street and slowly approached the railroad tracks. At no time prior to the moment of collision was the horse moving at such speed as would have prevented the deceased from stopping him almost instantly. The hood of the wagon top projected about 12 inches beyond the driver's seat, and the side curtains were down, thus preventing the deceased and the brakeman next to the engine from seeing each other so long as they maintained their respective positions. As the deceased neared the tracks there was to his right the passenger station of the railroad company and to his left, northward, in the direction from which the cars were approaching was a wide open space across which there was an unobstructed view for a long distance. A single illustration will suffice upon this subject. A look to the northward when the deceased was 50 feet from the point of collision on the second track, would have revealed to him the...