Northern Pac Co v. Freeman

• Decision Date: 15 May 1899
• Docket Number: No. 241,241
• Parties: NORTHERN PAC. R. CO. et al. v. FREEMAN et al
• Court: U.S. Supreme Court

174 U.S. 379

19 S.Ct. 763

43 L.Ed. 1014

NORTHERN PAC. R. CO. et al.

v FREEMAN et al.

No. 241.

May 15, 1899.

This as an action by the widow and minor children of Thomas A. Freeman, originally brought in the circuit court for the district of Washington against the receiver of the Northern Pacific Railroad Company and subsequently, after the discharge of the receiver, continued against the Northern Pacific Railway Company, purchaser at the foreclosure sale, which, by virtue of the provisions of the decree of sale, had assumed the liabilities of the receiver. The object of the action was to recover damages on account of the death of Thomas A. Freeman, which was alleged to have occurred by reason of the negligence of the company.

The accident occurred at a highway crossing near the eastern corporate limits of the town of Elma, in the county of Chehalis, in the state of Washington, at a point where the highway crosses the railway track nearly at right angles.

Upon the trial, counsel for the railway company asked the court to instruct the jury to return a verdict for the defendant, upon the ground that the undisputed testimony showed that the deceased, as he approached the railway crossing, did not look up or down the track, and did not see the train which was approaching in full view, and therefore was guilty of such contributory negligence as to preclude the plaintiffs from recovering damages. This the court refused, but left the case to the jury under the following instruction, to which exception was taken: 'Where a party cannot see the approach of a train on account of intervening objects, he may rely upon his ears, and whether he should have stopped and listened under the circumstances is for you; and if you believe from the evidence that deceased, Thomas A. Freeman, acted as a man of ordinary care and prudence would have done as he approached the crossing, then your verdict should be for the plaintiffs, in case you find that the defendants were negligent, and that the collision was due to their negligence.'

Counsel further excepted to the following instruction: 'There has been some testimony tending to show that the deceased might have seen the approaching train some feet before he reached the track. If you believe that the deceased could have seen the approaching train when he was within a few feet of the track, then it is for you to say, under all the circumstances, whether he used reasonable precaution and care to avoid the collision.'

Exception was also taken to an instruction to the jury upon the subject of damages, which does not become material here.

Plaintiffs recovered a verdict, upon which judgment was entered for $9,000. The judgment was affirmed on writ of error by the circuit court of appeals for the Ninth circuit, one judge dissenting. 48 U. S. App. 757, 27 C. C. A. 457, and 83 Fed. 82.

C. W. Bunn, for plaintiffs in error.

Stanton Warburton, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

There was testimony from several witnesses in the neighborhood tending to show that no whistle was blown by the engineer as the train approached the crossing. There was also the testimony of the conductor, engineer, and fireman that the whistle was blown. As the majority of plaintiffs' witnesses were so located that they would probably have heard the whistle if it had been blown, there was a conflict of testimony with respect to defendant's negligence, which was properly left to the jury.

The real question in the case was as to the contributory negligence of plaintiffs' intestate. For several hundred feet on either side of the highway crossing there was a cut of about eight feet below the surface of the surrounding country, through which the railway ran. The highway approached the crossing by a gradual decline, the length of which was from 130 to 150 feet. Along the greater portion of this distance the view of a train approaching, either from the north or the south, was cut off by the banks of the excavation on either side of the highway; but at a distance of about 40 feet before reaching the track the road emerged from the cut, and the view up the track for about 300 feet was unobstructed.

At the time of the accident, Freeman was driving along the highway, going eastward from the town of Elma in a farm wagon drawn by two horses at a slow trot. He was a man 30 years of age, with no defect of eyesight or hearing, and...