Northern Pac. Ry. Co. v. Spike

• Decision Date: 19 February 1903
• Docket Number: 1,797.
• Citation: 121 F. 44
• Parties: NORTHERN PAC. RY. CO. v. SPIKE.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F. 44

NORTHERN PAC. RY. CO. v. SPIKE.

No. 1,797.

United States Court of Appeals, Eighth Circuit.

February 19, 1903

L. T Chamberlain (C. W. Bunn, on the brief), for plaintiff in error.

Halvor Steenerson (Charles Loring, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

On the 31st day of December, 1900, about 8:25 p.m., William I Spike, a man of intelligence, 31 years old, in the full possession of all his senses, was traveling along the public highway, with which he was familiar, leading from Detroit Minn., to his home; driving a span of mules, hitched to an ordinary lumber wagon. For some distance the highway runs east and west, and nearly parallel to the railroad, but at varying distances from it, until the highway approaches within about 75 feet of the point at which it crosses the railroad track, when it turns south, and, going down a declivity, crosses the railroad at grade. At this crossing a locomotive pulling one of defendant's passenger trains came in collision with the team driven by Mr. Spike, killing him instantly, and this action is brought by his administratrix, under the Minnesota statute, to recover damages for his death, upon the ground that the accident resulted solely from the culpable negligence of the defendant railway company. In this court it is not contended that the evidence did not warrant the jury's finding that the railway company was guilty of negligence. The contention is that the deceased was guilty of contributory negligence, and that this court should so declare, as matter of law. The burden is on the defendant to establish this defense of contributory negligence by clear and satisfactory testimony. A brief summary of some of the leading facts will show very clearly that it has not discharged this burden.

The accident occurred after night. The deceased and the train were going in the same general direction until the highway turned sharp to the south to cross the railroad track. The train was running at the speed of 30 miles an hour. As it approached the highway it gave no signal by whistle or bell as required by the law of the state. The wind was blowing in the opposite direction to that which the deceased and the train were moving. The train was 12 hours behind its schedule time. The country along and over which the highway ran was somewhat broken, and owing to this fact, and the presence of brush, trees, telegraph poles, fences, and the like, the train or its headlight could only have been seen at intervals by one looking back for that purpose; and, owing to a railroad cut and the topography of the country, neither the train nor its headlight could be seen from the point where the highway turned to the south to cross the railroad track until one was on or near the track.

The defendant's evidence consists chiefly of photographs taken under the supervision of its claim agent, which, it is claimed, show that at various points before the deceased reached the crossing he might have seen the headlight of the approaching train if he had turned and looked. But it is obvious enough that these photographs were taken only at the points from which the train could be seen, and not at any of the points along the road from which the train could not be seen, and particularly was no photograph taken from the point in the highway where it descends to and crosses the railroad track. The photographs were taken some time after the accident, and in daylight, and from points of view chosen by the defendant. Having been taken under such widely varying conditions from those surrounding the deceased at the time of the accident, they fall far short of furnishing the clear and satisfactory evidence essential to establish the defense of contributory negligence. Courts have had frequent occasion to consider this character of evidence, and comment on its inconclusive and unsatisfactory character, in this class of cases. Miller v. Truesdale, 56 Minn. 274, 57 N.W. 661; Hutchinson v. St. Paul Ry. Co., 32 Minn. 401, 21 N.W. 212; Kellogg v. N.Y.C. & H.R.R. Co., 79 N.Y. 77; Massoth v. Delaware & Hudson Canal Co., 64 N.Y. 524.

The rules governing the rights and duties of travelers and railway trains at grade crossings are clearly defined by the Supreme Court of the United States in Continental Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403, and Texas & Pacific Ry. Co. v. Gentry, 163 U.S. 353, 16 Sup.Ct. 1104, 41 L.Ed. 186, and by this court in St. Louis & S.F. Ry. Co. v. Barker, 23 C.C.A. 475, 77 Fed, 810. In the first of these cases the Supreme Court speaking by Mr. Justice Bradley, says:

'The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. * * * On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case.'

And it is further said in the same case:

'Conceding that the railway train has the

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