Illinois Cent. R. Co. v. Nelson

• Decision Date: 25 October 1909
• Docket Number: 2,902.
• Citation: 173 F. 915
• Parties: ILLINOIS CENT. R. CO. v. NELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 915

ILLINOIS CENT. R. CO. v. NELSON.

No. 2,902.

United States Court of Appeals, Eighth Circuit.

October 25, 1909

William Baird (W. S. Kenyon, Thomas D. Healy, and J. M. Dickinson, on the brief), for plaintiff in error.

Francis S. Howell (Albert W. Jefferis, on the brief), for defendant in error.

Before HOOK, Circuit Judge, and RINER and AMIDON, District Judges.

HOOK Circuit Judge.

This writ of error assails a judgment obtained by the administrator against the railroad company for negligently causing the death of Henry C. Miller. About 11 o'clock in the forenoon of a bright, clear day the deceased, who was 44 years of age, in the full possession of his faculties, and familiar with the locality, with no obstacle to his view of an approaching train, walked directly in front of it, and was run over and killed. It is not important whether the company was negligent in the first instance. The contributory negligence of the deceased was admitted in the petition, and the plaintiff, his representative, relied for recovery u on what is sometimes termed the 'last chance rule.' In the case of St. L. & S.F.R. Co. v. Summers (decided at this term) 173 F. 358, Judge Adams, speaking for the court, said:

'The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track as precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to imminent peril and danger, and the railroad company, after actually discovering that condition, could by the exercise of ordinary care have stopped its train, or otherwise have avoided injuring him, and failed to do so. Chunn v City & Suburban Railway, 207 U.S. 302, 28 Sup.Ct. 63 52 L.Ed. 219; Denver City Tramway Co. v. Cobb, 90 C.C.A. 459, 164 F. 41. But in the application of this rule care must be taken to avoid undermining the rule of contributory negligence. Such negligence of the traveler, in law, fully exonerates the railroad company from the consequences of its original negligence, and some new and subsequent act of negligence must arise to create a cause of action; and this new or secondary act must be established by proof unaided by the former acts, which have been excused by the traveler's contributory negligence. Let us, therefore, inquire whether the servants of the railroad company had actual knowledge of the peril of the decedent, and whether with that knowledge it exercised reasonable care to avoid injuring him?'

To bring his case within this rule of law, the plaintiff introduced witnesses who testified to the following facts The train was composed of 16 freight cars, of which 9 were loaded and 7 empty. Seven were equipped with air brakes, and 9 were not. They were being backed southward towards a street crossing at a speed of 4 or 5 miles an hour; the engine being at the north end. The deceased was walking westward towards the crossing upon the north side of the street; but his intention to cross the track in front of the cars was not discovered until too late. He was knocked prostrate between the rails, and was finally taken out 70 feet or so further south, and from under either the second or third car, according to which of conflicting accounts is true. When it became apparent deceased was about to go upon the track, the brakemen on the cars hallooed and whistled to warn him, and then gave and repeated emergency signals. The engineer, with all possible speed after he received the signals, shut off steam, reversed the engine, applied the...