Northern Pac. Ry. Co. v. Tracy

• Decision Date: 02 October 1911
• Docket Number: 3,562.
• Parties: NORTHERN PAC. RY. CO. v. TRACY.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 15

NORTHERN PAC. RY. CO. v. TRACY.

No. 3,562.

United States Court of Appeals, Eighth Circuit.

October 2, 1911

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

Daniel B. Holt (Engerud, Holt & Frame, on the brief), for defendant in error.

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

MARSHALL District Judge.

This writ of error challenges a judgment recovered by the defendant in error, hereinafter referred to as the plaintiff against the plaintiff in error, hereinafter referred to as the defendant, in an action charging that the defendant negligently injured the plaintiff's steam traction engine at a railway crossing at the town of Taylor, N.D. In the complaint the defendant's liability is placed on two grounds: (1) That the crossing was not planked as required by a statute of North Dakota; and (2) that the defendant 'so carelessly, willfully, and negligently ran its locomotive and cars' as to collide with the traction engine and destroy it. The defendant by answer denied negligence on its part and alleged that the collision was caused by the negligence of the plaintiff.

The facts are these: The defendant's railway runs along the south side of the town of Taylor. At the crossing in question the line of track is nearly east and west, but on a three-degree curve that begins 148 feet west of the place of the accident, and continues 1485 feet east of it. The curve is toward the south. From this crossing a train approaching from the east is in plain sight for 3345 feet, but, because of the curve, the rolling character of the ground, and the substantial identity in elevation, at the crossing of the track and surrounding ground, the track itself cannot be seen from the cab of the locomotive until the train is about seven or eight car lengths from the crossing. This crossing had been planked, but the defendant had been engaged in resurfacing its track, and had taken the planks up. Sand had been used to fill in between the rails and on the approaches to the crossing. This had been the condition for from 30 to 60 days prior to the accident. At the crossing were two tracks-- the main line track to the north and a passing or side track to the south. From center to center of these tracks the distance was 14 feet. Between 9 and 10 o'clock a.m. of August 28, 1909, Brown as engineer and Neset as fireman, employes of the plaintiff in charge of the steam traction engine attempted to cross the line of railway at the crossing with this engine, which weighed from 16 to 18 tons. They succeeded in crossing the side track after a few minutes' delay and by the use of pieces of plank to block the rail they managed to cross the south rail of the main track with the front wheels of the traction engine. They failed, however, in all attempts to cross the north rail of the track. The plank before used as blocking was broken by its prior use, and the wheels of the engine sank in the soft sand. In this attempt to cross from 20 to 30 minutes elapsed. At some time, while the front wheels of the traction engine were between the rails of the main track, smoke from the defendant's approaching train was seen. The train was then at Richardton five miles to the east of Taylor. This train was a fast passenger train, and did not stop at Taylor. Plaintiff's servants in charge of the engine, knowing that the train was approaching, became apprehensive that they could not succeed in crossing the track in time, and attempted to back the engine to the south. The heavy driving wheels of the engine stuck against the north rail of the side track and prevented further movement to the south. The front wheels remained between the rails of the main track. This was the situation for four to five minutes before the collision. In the meantime the train came in sight running at a speed of about 40 miles an hour. The engineer was on the right side of the cab and could not see the crossing. The fireman was on the left side. He discovered the traction engine when about 12 car lengths from the crossing, but could not determine its position with reference to the crossing because of the curve and the intervening rolling ground. At seven or eight car lengths from the traction engine he first realized its dangerous situation, and immediately notified the engineer, who applied the emergency brake, but too late to escape a collision. The only effort made by the men in charge of the traction engine to attract...