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

• Decision Date: 07 April 1924
• Docket Number: 6373.
• Citation: 298 F. 381
• Parties: NOBLE v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

298 F. 381

NOBLE v. CHICAGO, M. & ST. P. RY. CO.

No. 6373.

United States Court of Appeals, Eighth Circuit.

April 7, 1924

Van Slyke & Agor, of Aberdeen, S.D., for plaintiff in error.

Ed. L Grantham and H. O. Hepperle, both of Aberdeen, S.D., for defendant in error.

Before LEWIS, Circuit Judge, and SYMES and PHILLIPS, District Judges.

SYMES District Judge.

The plaintiff, Mrs. Grace Noble, sues to recover damages for injuries suffered as a result of an accident occurring while riding in an automobile with her husband on a public highway. The car was struck by a train at a grade crossing on the main line of the defendant company near the town of Java, S.D. At the end of her case the court, on motion of the defendant directed a verdict in its favor, and gave judgment for defendant thereon. The three assignments of error deal only with the correctness of this ruling, and it is the only question before us.

The road upon which Mrs. Noble was traveling at the time of the accident runs straight north a considerable distance to the railroad track, which it crosses at right angles. The track running easterly from the intersection soon enters a cut, and at a point about 500 feet or a little more curves to the southeast. The road slopes down to the railroad track from a point half a mile south thereof. Immediately adjacent to the track it is 6 or 7 feet below the railroad grade, and finally rises again to reach the track. The accident occurred about 5 o'clock in the afternoon of October 30, 1921. The day was clear, with no wind. Mrs. Noble was riding in the front seat of the car, on the right side of her husband, who was driving. They were both more or less familiar with the road and the crossing. It is undisputed that she was on the side from which the train approached and that there were no curtains to obstruct her view, or that of her husband. She testifies that they drove up to the track at about 15 miles an hour, looking both ways for a train, but that she did not see any or hear any noise or whistle. She says the first she saw of the train was when they started up the incline onto the track, and that they could not have been at that time more than 16 feet away. She exclaimed, 'Oh. there is the train.' whereupon her husband tried to reverse the gear but only succeeded in stopping the car with the front wheel on the first track, when they were struck by the train. The car was knocked a considerable distance, and plaintiff rendered temporarily unconscious. She states that, by reason of the track passing through the cut and the curve, it is impossible to see a train approaching from the east until one is a comparatively short distance from the crossing. She further testifies that her husband put on a little more gas in order to make the elevation to the track at a point only a few feet therefrom, and it was at that time that she first saw the train coming from the east. She noticed the usual railroad crossing sign: 'Railroad Crossing. Look Out for the Cars.'

Her husband, Phillip Noble, testifies that the car was in good condition at the time and they approached the crossing at the rate of 15 miles an hour. Coming down the long slope of the road to the track, the view of the latter to the east is obstructed by the banks of the cut, through which the track runs. He claims to have maintained a strict lookout, but did not see or hear anything that would indicate the approach of a train, and that he continued to drive on until he was 15 or 16 feet south of the track. At this point he started to put on a little more gas to make the elevation, and the car was just beginning to pick up speed, when his wife exclaimed, 'There is a train.' whereupon he devoted his efforts to stopping and reversing the car. They were struck just as the front wheel was exactly on the first rail; that he himself 'didn't see any train until the pilot of that engine hit the front wheel,' and had not heard it before that. Other witnesses for the plaintiff, familiar with the scene, testify that from a point on the road at least 50 feet south of the crossing a train approaching from the east could be seen 250 to 400 feet away.

The plaintiff, on being recalled, stated...