Northern Pac. Ry. Co. v. Heaton

• Citation: 191 F. 24
• Decision Date: 02 October 1911
• Docket Number: 3,563.
• Parties: NORTHERN PAC. RY. CO. v. HEATON.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

191 F. 24

NORTHERN PAC. RY. CO. v. HEATON.

No. 3,563.

United States Court of Appeals, Eighth Circuit.

October 2, 1911

N.C. Young (Ball, Watson, Young & Lawrence, on the brief), for plaintiff in error.

John Knauf (Arthur L. Knauf, on the brief), for defendant in error.

Before ADAMS and SMITH, Circuit Judges, and MARSHALL, District Judge.

MARSHALL District Judge (after stating the facts as above).

It is contended that the peremptory instruction requested should have been given for these reasons: (1) That there was no substantial evidence of the railway company's failure to give the statutory crossing signal; (2) that such failure, if it existed, was not the proximate cause of the accident; and (3) that the boy injured was guilty of negligence contributing to his injury.

There was the affirmative evidence of the engineer and fireman that the whistle was sounded and the bell rung. Four witnesses in behalf of the plaintiff below gave the negative testimony that they failed to hear any signal. Those witnesses were variously situated. Their attention was called to the approaching train by the locomotive headlight, and the circumstances were such as to warrant the jury in believing that if the signals had been given they would have heard them. The verdict of the jury determined the fact against the plaintiff in error. Chicago, R.I. & P. Ry. Co. v Stepp, 164 F. 785, 90 C.C.A. 431, 22 L.R.A. (N.S.) 350.

The argument that the failure to give the required signal was not the proximate cause of the accident is based on this: It is said that a boy so oblivious to his surroundings as to fail to notice a brilliantly lighted train would probably not have heard these signals, if given, and hence the accident would still have happened. This argument is strained, and the jury have found otherwise. It was especially a question for the jury to determine the causal relation of the failure to give the signal and the ensuing collision. The evidence does convince that, if the signal had been given, the boy might and ought to have heard it, and affords no reason for an appellate court to say that the jury were clearly wrong in reaching the conclusion that he would have heard it.

Was the evidence of the boy's contributory negligence so conclusive as to require a directed verdict? He testified that, a few seconds before he attempted to cross the railway line, he looked to the east and failed to see the approaching train. The circumstances of the accident, however, conclusively establish that, if he had looked at any time while the train was within 1,600 feet of the crossing, he could not have failed to see the brilliantly lighted train, and the conclusion must be that a much longer time elapsed after he looked than is to be inferred from his testimony. His attention was attracted by a light to the west, thought by him to be the headlight of a locomotive approaching from that direction. He was a young boy, not yet 12 years old, riding alone at night. If he had been of mature age, his negligence would not be a matter of doubt. As to adults, it is established that the railway line is notice of danger, and that before crossing it the traveler must look and listen for approaching trains. But this rule, definitely prescribing the care to be used under such circumstances, is based on experience of the care ordinarily used by adults. A minor is only required to use the care appropriate to his age, experience, and mental capacity. At tender age no care is to be expected, or is required of him. When closely approaching maturity in many ways he is capable of exercising the care of an adult. Between these extremes the care required of him varies with his age, intelligence, and experience. He is not expected to suddenly emerge from the helplessness of infancy into maturity; and it is usually the province of a jury in a case of this kind to determine the care such a minor...