Kirtley v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 21 January 1895
• Docket Number: 1,978.
• Citation: 65 F. 386
• Court: U.S. District Court — Western District of Missouri
• Parties: KIRTLEY et al. v. CHICAGO, M. & ST. P. RY. CO.

65 F. 386

KIRTLEY et al. v. CHICAGO, M. & ST. P. RY. CO.

No. 1,978.

United States Circuit Court, W.D. Missouri, Western Division.

January 21, 1895

Plaintiffs sue for the death of their father. He was killed while walking on one of the defendant's double tracks within the city of Kansas, by a single engine, moving with the tender forward. The accident occurred on a fair day, between 9 and 10 o'clock in the morning, at a place where the deceased had an unobstructed view, both before and behind him, of more than a thousand feet along the track. He was walking westward, and on the north one of the two tracks. The north track was used by trains going westward, and the other by those moving in an opposite direction. The deceased had been traversing the south track, until, a few feet before he was struck, he discovered the train approaching him, and he turned from off that, and moved towards the north track. Whether he got upon it further than the south rail does not distinctly and decisively appear. Just at this time alarm whistles were given by the engine (which was approaching him from the rear, and by which he was struck) a few feet distant from him, which he did not seem to heed, and hence was immediately struck and killed. There is no evidence that the engineer actually saw the deceased until the alarm whistles were given, when it was then too late to avert the accident. The tracks at the point of the accident were on an elevated embankment, and were not intersected by any streets which crossed them at the level. There was testimony tending to show that it was somewhat the common practice for pedestrians to occupy these tracks in going from one point to another in the city. The jury were directed to find a verdict for the defendant, whereupon the plaintiffs took a nonsuit, and now move to set it aside.

Ed. G Taylor, for plaintiffs.

Pratt Ferry & Hagerman, for defendant.

PRIEST District Judge (after stating the facts).

This case, in its every essential feature, so closely resembles that of Railway Co. v. Moseley, 6 C.C.A. 641, 57 F 921, that it is quite sufficient, for the justification of the action of the court in giving the peremptory direction to the jury, to refer alone to that case; but counsel contend that there is a charge in the petition here which was not made in the one in that case, and an element present here not noticed there. We think counsel in this is mistaken. The facts upon which counsel seek to distinguish this case from that were present there as conspicuously as here, but because they were not so prominent and decisive of the case as those dwelt upon by the court, they appear not to have been directly commented upon. In addition to this, the charge of the trial court in that case obviated the necessity of reviewing those theories which are now called to my attention as distinguishing that case from this. In that case there was a contention that the plaintiff ought to recover because the defendant's servants saw him, and might, by the exercise of ordinary care, have averted his injuries; and also that, by the exercise of ordinary care, they would have discovered him in time to have avoided injuring him. Upon these two issues the trial court charged as follows:

'But there can be no recovery in this case on the ground that the engineer and fireman saw him, and might have avoided injuring him for this reason. There is no evidence in the case tending to show that either the engineer or fireman saw him before he was struck. That being so, the plaintiff is not entitled to recover upon the ground which I last stated. The plaintiff's attorney contends that under other circumstances the plaintiff would be entitled to recover, and he further contends that such circumstances exist in this case, and can be proven; that is to say, the plaintiff's attorney contends that the engineer and fireman, although they did not see him, by exercising such reasonable care as they were bound to exercise might have discovered the plaintiff on the track, and the danger he was in, in time to have avoided injuring him. He further contends that they did not exercise such care, and on that ground he asks a verdict at your hands. The court is of the opinion, and the court so instructs you, that there can be no recovery on the ground last stated; that is to say, there can be no recovery on the ground that the engineer and fireman were at fault in not discovering the plaintiff on the track; and the court is of that opinion for the following reasons: It is true that it was the duty of the engineer and fireman to exercise ordinary care in looking out for persons and objects who might be ahead of them on the track, but it was also the duty of the plaintiff to exercise care to see that he was not overtaken by the trains or engines approaching him from the front or rear. The obligation resting on the engineer and fireman to look out ahead was no greater than the obligation resting on the plaintiff to keep a careful lookout to the rear. If the engineer and fireman in this case were at fault, in the mere matter of watching the track, the plaintiff was equally at fault in the same respect; and you are aware when two persons are equally at fault, and one of them is hurt, he cannot recover of the other. For that reason, I say to you, gentlemen, that you cannot render a verdict for the plaintiff in this case on the ground that the engineer and fireman were guilty of neglect in not discovering him on the track before he was struck. Conceding that they were guilty of neglect in that regard, plaintiff himself was guilty of the same species of neglect in not discovering the engine. Both were at fault, and, under these circumstances, he is not entitled to recover on account of the particular neglect last mentioned.'

It is true this theory concerning the want of exercise of care after discovering the peril of one upon the track or the failure to exercise ordinary care in discovering the peril of one on the track,-- the theory now put forward with earnestness in this case,-- was not descanted upon at length in that. We will give our understanding of the principles which form the component elements of that rule of law which permits a recovery by the plaintiff, although he may be in a condition of negligence, if by the exercise of ordinary care the defendant could have avoided injury to him after discovering his peril. Such a rule has its origin in the opinion of the court in the case of Davies v. Mann, 10 Mees.& W. 546, where it is said:

'This subject was fully considered by this court in the case of Bridge v. Railway Co. (3 Mees.& W. 246), where, as appears to me, the correct rule is laid down concerning negligence, namely: That the negligence which is to preclude a plaintiff from recovering in an action of this nature must be such as that he could, by ordinary care, have avoided the consequences of the defendant's negligence. I am reported to have said in that case, and I believe quite correctly, that the rule of law is laid down with perfect correctness in the case of Butterfield v. Forrester (11 East, 60), that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover; if by ordinary care he might have avoided, he is the author of his own wrong.'

This case has been much misunderstood and maligned, and its principles put to very unjust uses and applications. Analysis of it will demonstrate the perfect soundness of its reasoning, and the validity of the principle there laid down. Every principle must be tested by the particular facts in relation to which it is announced. The facts in this case, briefly stated, are these: The plaintiff turned his ass out on the highway, fettered, to graze, and abandoned him. The defendant's servant, coming along with a wagon and team, carelessly ran over the animal, for the injuries in consequence of which the plaintiff brought action. Of course, it could not be predicated of the animal that it was guilty of negligence, and its owner was not present; so that, notwithstanding it was the duty of the owner not only to keep the animal from doing harm, but out of harm's way, he had not the opportunity of knowing that it was exposed to danger through the negligence of defendant's servant. On the other hand, it was not only the duty of the defendant's servant to keep a lookout to avoid harming anything which might be upon the public highway, but he had also, what the plaintiff had not, the present opportunity to know that the plaintiff's animal was exposed to danger through his careless driving. So that, when the rule in Butterfield v. Forrester was invoked, the court, in effect, said:

We admit the rule in that case to be perfectly accurate, but it is not applicable to the conditions in this; for in this case, while the duty to watch out was alike incumbent upon the plaintiff and the defendant's servant, yet the servant had in the discharge of that duty imposed upon him an opportunity to know of the animal's danger, and with that knowledge the power to avoid the injury, while the plaintiff had not; and therefore the plaintiff's neglect was not a present co-operating cause of the injury, but merely an attendant condition. If the plaintiff had been present in charge of the animal, with an opportunity to know of the danger to which it was or might be exposed through the negligence of the defendant's...