Northern Pac. Ry. Co. v. Tripp

• Decision Date: 04 January 1915
• Docket Number: 4238.
• Citation: 220 F. 286
• Parties: NORTHERN PAC. RY. CO. v. TRIPP.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 286

NORTHERN PAC. RY. CO. v. TRIPP.

No. 4238.

United States Court of Appeals, Eighth Circuit.

January 4, 1915

E. T Conmy, of Fargo, N.D. (C. W. Bunn, of St. Paul, Minn., and Watson & Young, of Fargo, N.D., on the brief), for plaintiff in error

Arthur W. Fowler, of Fargo, N.D., for defendant in error.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

T. C MUNGER, District Judge.

The defendant in error had a verdict and judgment against the plaintiff in error in an action for negligence. For convenience the parties will hereafter be referred to as plaintiff and defendant, as they appeared in the trial court.

At the town of Sheldon, N.D., the defendant maintained four railway tracks running east and west over a public highway which crossed the tracks at right angles thereto. The center of the most southerly of the tracks, called the 'house track,' was 13 feet from the center of the track next north, called the 'passing track,' and from the center of the passing track to the center of the next track to the north, called the 'main track,' was 35 feet and 2 inches. The fourth track was about 45 feet north of the north rail of the main track, but its location is not of importance in this suit.

A portion of the business section of Sheldon was situated just north of these tracks, but elevators, a hotel, and many other buildings were situated south of the tracks. Just south of the house track the highway curved sharply to the west across a sidewalk, and then turned again to the south in front of a hotel, which was about 100 feet south of the house track. The main track as it approached the highway from the east had a slight downgrade, and the grade of the highway rose about 3 inches to the foot from the passing to the main track.

The plaintiff was in the livery business at a neighboring town, had owned and used automobiles for several years, and owned and was operating the one in which he was at the time of the accident. He frequently passed over this crossing, and had crossed it going south with some passengers but a few minutes before he was injured. The accident occurred about 10 o'clock in the forenoon of a bright July day. The plaintiff, after discharging his passengers at the hotel, had started his automobile north, and about 15 feet west of the sidewalk he had turned to the east, and continued eastward till he had crossed the sidewalk, when, following the curve in the road, he drove in a northeasterly direction about 68 feet to the first crossing, and thence north to the main track, where a passing train from the east struck his automobile and caused his injuries. That there is sufficient evidence of the defendant's negligence as to the speed of the train and the failure to give proper warning by bell or whistle is not disputed; but it is contended that the undisputed evidence shows plaintiff's contributory negligence, because he failed to use proper care to look and listen for approaching trains. The plaintiff testified that he looked to the east for a train, when his automobile started east at the point 15 feet west of the sidewalk. At this point his view was somewhat obstructed by two box cars, one on the house track 43 1/2 feet east of the crossing, and one on the passing track 475 feet east of the crossing and by a pile of cordwood, lumber, a coal shed, and a grain elevator situated along the south side of the passing track; but he could see over a section of the main track at a distance of 700 or 800 feet, and he says he saw no train approaching. His view further east than 800 feet was entirely obstructed by the coal shed and elevator.

Plaintiff then drove 68 1/2 feet from the sidewalk around the curved road to the center of the crossing over the house track and 48 feet further to the main track. After his view was unobstructed by the box car on the house track, and after passing the north rail of the house track, he had a distance to go before reaching the nearer rail of the main track of 43 feet, and from any point along this distance of 43 feet his view to the east along the main track was unobstructed, and he could see an approaching train for at least 800 feet. He did not look in this direction after passing the obstruction of the box car. He testifies that his automobile did not travel in excess of 5 miles per hour, and that he was looking to the west from the time he was on the house track until he had gone 30 or 40 feet, and meanwhile he was listening for the approach of a train, but he did not still the noise of his automobile. His view was cut off to the west, until he passed the house track, by an elevator and a box car, and to some extent thereafter by a coalhouse and trees between the passing and main tracks. He heard the rumbling of the approaching train when he was about half way between the passing and main tracks, and in some excitement then attempted to drive on over the main track. The plaintiff had had experience as a railroad man, having spent 15 years as a brakeman and freight and passenger conductor.

If the plaintiff were traveling at 5 miles per hour, and had a distance to go of 116 feet before he reached the main track, a train running at 35 miles an hour would cover the 800 feet that is admitted to have been the limit of his vision down the main track, and be upon the crossing at the same time he would reach it; and one running at a less speed would be in such proximity as to make a crossing dangerous, such as men of ordinary prudence would not hazard.

The brakes and appliances of plaintiff's automobile were in good working order, and the undisputed testimony is that he could have stopped it by the customary methods in less than 5 feet at any time after he passed the obstruction of the box car on the house track. For the distance of 43 feet in which he had a clear view to the east after passing that car, he was master of his movements, with an ample factor of safety. If the speed at which he was driving was such that he had not enough time to look in both directions along the railway track, reasonable care required that he should control that speed until his safety could be assured. If one traveling in an automobile at 5 miles per hour may continue toward a railway track for a distance of 43 feet after passing an obstruction without looking in each direction, then...