Northern Pac. Ry. Co. v. Moe

• Citation: 13 F.2d 377
• Decision Date: 03 June 1926
• Docket Number: No. 7072.,7072.
• Parties: NORTHERN PAC. RY. CO. v. MOE.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

13 F.2d 377 (1926)

NORTHERN PAC. RY. CO. v. MOE.

No. 7072.

Circuit Court of Appeals, Eighth Circuit.

June 3, 1926.

Frederic D. McCarthy, of St. Paul, Minn. (D. F. Lyons, of St. Paul, Minn., on the brief), for plaintiff in error.

John F. D. Meighen, of Albert Lea, Minn. (Meighen, Knudson & Sturtz, of Albert Lea, Minn., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and MUNGER and JOHNSON, District Judges.

MUNGER, District Judge.

Calmer F. Moe brought this suit against the railway company, alleging that it negligently caused the engine of one of its passenger trains to collide with an automobile in which the plaintiff's wife was riding, and thereby inflicted injuries upon her from which she died. The railway company denied that it was negligent, and alleged that Mrs. Moe was guilty of negligence that contributed to her injury and death. A verdict was returned in favor of the plaintiff, and judgment was entered thereon.

The accident occurred on the morning of September 12, 1923, as the plaintiff was driving an automobile along a public highway crossing over the railway company's tracks in the village of Wheatland, N. D. There were allegations in the plaintiff's complaint that the defendant was negligent because it ran its train across this crossing at excessive speed, without ringing the bell or blowing the whistle of the engine, and without having any flagman, gates, or gong at the crossing, and because it negligently failed to give any signal, caution, or warning to the plaintiff and others of the approach of the train. The railway company relies upon its claims that the trial court erred (1) in refusing to instruct the jury that the evidence was not sufficient to warrant consideration of the charge of negligence, so far as it related to the absence of gates, a flagman, bells, or of some additional protection at the crossing; and (2) in refusing to instruct the jury to return a verdict for the defendant, the company claiming that the contributory negligence of Mrs. Moe was conclusively established.

Whether reasonable care on the part of the railway company required a flagman or some other means of warning to travelers of the approach of trains over the crossing where this accident occurred depends upon the character of the crossing. The village of Wheatland has a population of about 200 or 300 people. It is situated in a level prairie country. The railway company's tracks run east and west through the village. The main portion of the village lies on the south side of the tracks, but there is a public school, a lumber yard, a city hall and an Odd Fellows' lodge building north of the tracks. The accident occurred where Washington street, a street running north and south, crosses over the railway tracks. This street connects with one of the principal public highways across the state. The automobile approached these tracks from the north. There are five of the railway tracks. The first one, counting from the north, is known as the elevator track. A traveler from the north would have his view to the west obstructed, to some extent, by the fact that there was a coal shed about 80 feet in length and 16 feet in width situated along the south side of the elevator track, about 6 feet south of the first track, and about 15 feet west of the traveled highway. West of the coal shed about 50 feet is a large grain elevator, about 50 feet wide, which also is about 6 feet from the first track. Upon the elevator track there are often freight cars, and at the time of this accident one was situated 10 or 15 feet east of the crossing and one or two were situated in front of the coal shed. Twenty-nine and one-half feet south from the center of the elevator track is the center of track No. 2, called the passing track. The third track is called the west-bound main track. Its center is 14 feet from the center of the passing track. The fourth track is called the east-bound track, and its center is 13 feet from the center of the third track. These two tracks are the double-track system for the through trains.

When Mr. Moe first approached this crossing, a long freight train of 50 or 60 cars going west on track No. 3 was beginning to cross Washington street. Mr. Moe stopped his automobile 10 or 12 feet north of track No. 1 and waited for the freight train to pass. A passenger train was approaching Wheatland from the west on track No. 4. As the freight train passed along track No. 3 to the west of the street, the passenger train approached the street crossing; but it was hidden from the view of the occupants of the automobile by the freight train. Mr. Moe started to drive across the tracks soon after the last car, or caboose, of the freight train had cleared the street crossing, and his car was struck by the engine of the passenger train on track No. 4.

There is a fifth track at this place of crossing, with its center about 51 feet south of the center of track No. 4. This is also known as an elevator track, and along it to the west of the street is a coal shed and a grain elevator, situated in much the same positions as those structures are along track No. 1. The railway depot building is located between tracks numbered 4 and 5, beginning about 90 feet east of the center of the street and extending for 100 feet east and west. A platform about 12 feet wide is between the depot and the south rail of track No. 4. The passing track and the two main tracks (Nos. 2, 3, and 4) are laid upon an embankment of earth which is slightly higher than the adjacent lands. At this street crossing it was about 3 feet higher than track No. 1, and about 5 feet higher than track No. 5. The point where Mr. Moe stopped his car was somewhat lower than the elevator track, perhaps 8 or 10 inches. The view down the main line tracks from any place between the two elevator tracks is quite extensive, if no cars upon any of the tracks obstruct the view. The tracks run in a straight direction both to the east and to the west from this street crossing for many miles.

There was testimony that about 50 or 60 vehicles passed over this crossing each day, and that 15 or 20 freight trains and 16 passenger trains traveled over it each day. Two of the freight trains stopped at the station and four of the passenger trains. Trains going in opposite direction often pass each...