MacLeod v. Graven

• Decision Date: 14 April 1896
• Docket Number: 354.
• Citation: 73 F. 627
• Parties: MacLEOD et al. v. GRAVEN.
• Court: U.S. Court of Appeals — Sixth Circuit

73 F. 627

MacLEOD et al. v. GRAVEN.

No. 354.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

Bennett H. Young and Young, Trabue & Young, for plaintiffs in error.

Gardner & Moxley, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

LURTON Circuit Judge.

The intestate of the defendant in error, while crossing one of the tracks of an electric street railway, was struck by a moving car, and received such bodily injuries as resulted in his death. His widow and administratrix has recovered a judgment for the damages thus sustained, against the plaintiffs in error, who were operating and managing the street-railway line as receivers. To review this judgment this writ of error has been sued out. The defenses interposed by the plaintiffs in error were: First, that they were not guilty of any negligence; and, second, that the deceased himself so far contributed to his misfortune, through his own negligence, that, but for the absence of ordinary care and caution on his part, the collision by which he suffered would never have occurred. At the conclusion of the whole of the evidence, the plaintiffs in error moved the court to instruct the jury to find for the defendant. This was refused, and this action of the court is now assigned as error.

The plaintiffs in error were receivers in possession and operation of a line of electric railway under order and direction of the circuit court of the United States for the district of Kentucky. This line consisted of two parallel tracks, extending from a point in the city of Louisville Ky., to a point in the city of New Albany, Ind. Cars going west used the most northerly of these tracks, and those going east used the other. Alpha Graven, the deceased, lived in the western part of the city of Louisville, near the Twenty-Sixth street station, and returning every evening by the same route. On the afternoon of May 10, 1894, he returned from the city in the usual way, taking a car at Seventh street. The train consisted of a motor car, with a trailer attached. When nearing the Twenty-Sixth street station, he came out of the motor car, and stood under the hood of the rear platform until the train slowed up for Twenty-Sixth street, when, without waiting for the car to stop, he jumped off upon the right-hand or southerly side of the car, and started across the parallel track somewhat obliquely, in the direction of the Twenty-Sixth street crossing, and, just as he stepped upon the second track, was struck by the forward corner of a motor car going east. The collision was so violent as to knock him down in such position that he was dragged along for from 20 to 40 feet by the oil box attached to the car. Deceased left the car before Twenty-Sixth street was reached, and undertook to cross the parallel track at a place which was not a public crossing. The two tracks were from 7 to 9 feet apart. The space between was neither graded nor paved, and was part of the private right of way. It was some inches lower than the level of the tracks. There was a platform on the right or northern side of the track, for the convenience of passengers getting on or off the cars going west, and another upon the opposite side of the parallel track for the use of passengers taking or leaving cars going east. These platforms were about level with the lower step of the cars, were each about 118 feet long, and extended up to the line of Twenty-Sixth street. Deceased lived on the south side of the railway, and, to reach his home, was therefore obliged to cross the railway. He had two courses open to him when his car reached Twenty-Sixth street,-- either to get off on the platform provided for that purpose, thence, by the platform, to Twenty-Sixth street, crossing the railway at the crossing of that track at point of debarkation, and thence obliquely to Twenty-Sixth street. The distance saved was possibly from 15 to 20 feet. There was no other advantage in debarking in the way deceased did, and that advantage involved a step down to the right of way of about two feet, and the danger of crossing the parallel track at a place other than a public crossing. The rules of the company required passengers to take and leave the cars by the platform. This rule was frequently violated by persons living, as the deceased did, south of the railway, and there were no gates to prevent passengers from getting on or off the cars upon either side. The servants of the company operating the trains did not willingly acquiesce in violations of the company's rule, for they all testified that they endeavored to prevent it when done under their observation. There was in evidence a rule of the company requiring that 'all trains and engines on either track must approach Twelfth, Eighteenth, Twenty-Sixth, and Twenty-Ninth streets under full control, and keep careful lookout for passengers crossing to and from K. & I. trains, and must NOT UNDER ANY CIRCUMSTANCES PASS THESE STATIONS while K.& I. trains are RECEIVING OR DISCHARGING PASSENGERS. ' The evidence tended to show that this east-bound train passed the Twenty-Sixth street crossing at full speed, and was not under control, as required by this rule. There was a conflict of evidence as to whether the motorman on the train had made any effort to prevent passing the station while the west-bound train was receiving or discharging passengers, though the motorman testified that he threw off the current before crossing Twenty-Sixth street, because he saw the other train pulling into the station. There was a conflict of evidence as to whether the gong was sounded or any other warning given upon approaching or while crossing Twenty-Sixth street. The evidence also tended to show that the train which collided with the deceased was traveling at a speed of from 15 to 20 miles per hour when it crossed Twenty-Sixth street, and when it struck deceased.

Assuming, therefore, that the evidence relating to the negligence of the railway company was such as to make an issue for the jury upon that part of the case, we come to the important question upon which our judgment must turn: Was the evidence touching the alleged contributory negligence of the deceased undisputed, and were the facts touching his negligence such that all reasonable men must draw the same conclusion from them? If so, the question of contributory negligence was one of law for the court. If not, the whole case was properly submitted to the jury.

Upon this branch of the case, counsel for defendant in error have assumed that the resemblance between the facts of this case and those stated in the opinion of the supreme court in Railway Co. v. Lowell, 151 U.S. 209, 14 Sup.Ct. 281, is so strong that the judgment here should be governed by that case. While there is much in common between the cases, there is much that distinguishes them. That case did not turn upon the question as to whether the plaintiff had looked or listened before undertaking to cross the track, for it is distinctly stated in the opinion that he neither saw nor heard any train coming. More important still is the fact that the request for a peremptory instruction was made after the conclusion of the plaintiff's evidence, and was not renewed at the conclusion of the entire evidence. That motion could not be the subject of an exception or error, as it had been waived by the introduction of evidence after it had been overruled. Railroad Co. v. Hawthorne, 144 U.S.202-206, 12 Sup.Ct. 591; Bogk v. Gassert, 149 U.S. 17-23, 13 Sup.Ct. 738; Railway Co. v. Callaghan, 161 U.S. 91, 16 Sup.Ct. 493.

The only errors cognizable upon the writ of error were those pertaining to the instruction touching the plaintiff's alleged violation of the company's regulation requiring passengers to alight from the train on the platform side. This question, upon the facts of that case, was held to have been properly submitted to the jury, under proper instructions. In that case it appeared that there were two tracks, with a platform, on either side of the double track opposite to the platform provided for passengers debarking from his train. He chose the latter, and was run down by a wild train running backward, without a light, and which gave no warning. Concerning the question as to whether the action should have been defeated because the plaintiff had not disembarked on the platform, and gone under the tracks, the court said:

'We are of opinion that there was no absolute obligation on the part of the plaintiff to cross the track by way of the ravine known as 'Victoria Street.' To do this would have required him to descend a flight of steps at the east end of the station, about fifteen feet to the level of the street, which was not graded or in any way improved, but was a natural ravine, passing under the

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