Lang v. Byram

• Decision Date: 07 October 1929
• Docket Number: No. 8515.,8515.
• Citation: 35 F.2d 489
• Parties: LANG v. BYRAM et al.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 489 (1929)

LANG v. BYRAM et al.

No. 8515.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1929.

George G. Chapin, of St. Paul, Minn. (Herbert P. Keller and Bruce J. Broady, both of St. Paul, Minn., on the brief), for appellant.

A. C. Erdall, of Minneapolis, Minn. (F. W. Root and C. O. Newcomb, both of Minneapolis, Minn., on the brief), for appellees.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and MARTINEAU, District Judge.

KENYON, Circuit Judge.

At a grade crossing in St. Paul, Minn., appellant's automobile collided with a train of cars on the Chicago, Milwaukee & St. Paul Railway, operated by appellees as receivers, with the usual disastrous results to the automobile and its occupant. This action for damages resulted. The trial court at the close of the evidence directed a verdict for appellees on the ground of contributory negligence of appellant. The only question in the case is whether under the circumstances contributory negligence was a question of fact for the jury, or of law for the court. The accident occurred after dark February 10, 1927, shortly after 7:30 p. m. The place of the accident was Seventh street in the city of St. Paul, which is crossed by a double track of the Milwaukee Railway Company at about the point where Colborne street intersects and crosses Seventh street. Seventh street runs in a diagonal direction, from the business center of St. Paul to the northeast, toward Ft. Snelling to the southwest. Colborne street runs due north and south, and intersects West Seventh street at the crossing. The street railway track on Seventh street crosses the two railroad tracks. The north railroad track is the west-bound main line, and the south track is the east-bound main line. Crossing gates were maintained at this crossing, but at the time of the accident they had been inoperative for a couple of days by virtue of being frozen, and during these two days employés of the railway company had been working to put them in condition for operation. There was a flagman at the crossing when the gates were not working, and he was performing his duties there at the time of this accident. There was also a flagman employed by the street car company. While these railroad tracks were main line tracks, they were used by transfer trains and switch engines. The train which struck appellant's automobile was a transfer train coming from the west on the south track, and had a standard headlight on the engine. Appellant was proceeding southwest. There were obstructions to his view to the west, viz. a one-story frame house and a signboard. The signboard, which was high enough to obstruct the view of an approaching train, ran parallel with the railroad tracks 12 feet north of the north rail of the west-bound main line track. The east end of the signboard was 15 feet west of the edge of the Seventh street sidewalk, and extending along the signboard was a platform 4 feet wide. The sidewalk was 9½ feet wide. The southwest corner of the house was 17 feet from the nearest rail of the nearest track. The building was parallel with Seventh street, and was 8 feet back from the sidewalk. From center to center of the railroad tracks was 14 feet. The north rail of the east-bound track was 26 feet from the signboard and parallel therewith, and the nearest rail of that track was 31 feet from the southwest corner of the house referred to. The crossing gate on Seventh street northeast of the track was 40 feet from the north rail of the north track and 60 feet from the north rail of the south track measured along the curb line. Appellant in approaching the crossing looked to the right at the place where the gate was located, which would be the direction to observe a train coming from the west on the east-bound track, but at the point where he looked his vision was obstructed by the frame house and the billboard. He had no unobstructed view of the track to the west until he passed the billboard. After that he could have seen an approaching train on the east-bound track for a considerable distance. He had lived on West Seventh street for 8 years prior to the accident, had owned an automobile for 6 years, had gone over the crossing two or three times a week during all the time he had lived there, and was thoroughly familiar with it. On the night of the accident, he approached the crossing at a speed of some 18 miles an hour, looked to the right at a place where he could not see an approaching train, and, after passing this point, looked to the left and did not look again to the right, but proceeded at about 12 miles per hour over the crossing, and was struck by the transfer train moving about 10 miles per hour on the east-bound main track, resulting in injuries, for which he seeks damages.

If the matter of crossing gates was not involved in this case, there could be no question as to appellant's negligence as a matter of law. Davis v. Chicago, R. I. & P. Ry. Co. (C. C. A.) 159 F. 10, 16 L. R. A. (N. S.) 424; St. Louis & S. F. R. Co. v. Cundieff (C. C. A.) 171 F. 319; Chicago, M. & St. P. Ry. Co. v. Bennett (C. C. A.) 181 F. 799; Bradley v. Missouri Pac. R. Co. (C. C. A.) 288 F. 484; Noble v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 298 F. 381; Parramore et al. v. Denver & R. G. W. R. Co. (C. C. A.) 5 F.(2d) 912; Bergman v. Northern Pac. Ry. Co. (C. C. A.) 14 F.(2d) 580; Kutchma v. Atchison, T. & S. F. Ry. Co. (C. C. A.) 23 F.(2d) 183.

The case of Baltimore & O. R. R. Co. v. Goodman, Adm'x, etc., 275 U. S. 66, 70, 48 S. Ct. 24, 25, 72 L. Ed. 167, 56 A. L. R. 645, goes further than any other case on the subject of liability for accidents at railway crossings. There the court held that, if the circumstances are such that the driver of an automobile approaching a crossing cannot be sure "whether a train is dangerously near he must stop and get out of his vehicle, * * * that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk," and also it points out that generally the question of due care is for the jury, but that they are dealing with a standard of conduct, and "when the standard is clear it should be laid down once for all by the Courts." Counsel for appellant with commendable frankness admits that, if appellant as a matter of law owed the duty to look west under the circumstances he had to come to a full stop to do so, and that he would owe such duty in the absence of crossing gates. Therefore the case narrows to the question of whether or not the situation as to the raised crossing gates made the alleged negligence of appellant a matter for the jury to determine. It must be borne in mind that this is not a case where gates were raised as a party approached a railroad crossing. Instances arise every day in cities where automobiles and pedestrians are held at a crossing by the gates being down, and, after a train passes, the gates are raised and parties awaiting proceed, upon the invitation therein implied, to cross the track. That situation is quite different from the one here presented. Appellant had lived near this crossing for many years, and must have known as a matter of common sense that the gates might freeze up in the severe winters. There was no one apparently in charge of them as he approached, and he had not seen them raised and had no reason to infer that they had been raised immediately prior to his coming up to the track.

We refer first to a few of the cases outside of this circuit where the question of crossing gates was involved.

In Erie Railway Co. v. Schultz (C. C. A.) 183 F. 673, where the party waited before a closed gate until the train had gone by and the gate had lifted, the court held the question of his contributory negligence was for the jury, and pointed out that a party must use his senses of sight and hearing according to the standard of a reasonably prudent man under similar circumstances, stating that open gates generally make the question of contributory negligence for the jury, and said (page 676 of 183 F.): "In spite of the fact that, as we think, the traveler, crossing under circumstances like those shown by this record, is not bound absolutely and at all events to look both ways on the very instant when he comes clear of the obstructions, still his failure to use his eyes and ears might, under some circumstances, be so clearly not the conduct of a prudent man that a verdict would be directed against him, but in the present case this question was rightfully left to the jury."

In Pennsylvania Co. v. White (C. C. A.) 242 F. 437, the situation was one where White approached the track while the gates were up, and saw the operator in his shanty near the gates. After he got on the track they were closed on each side. Under those circumstances the question of contributory negligence was held to be for the jury.

In Delaware, L. & W. R. Co. v. Welshman (C. C. A.) 229 F. 82, 85, L. R. A. 1916E, 816, the court said: "Of course, the raising of the gates did not make the railroad either an insurer or the sole...