Pyle v. Clark, 864

• Decision Date: 22 March 1897
• Docket Number: 864,865.
• Parties: PYLE v. CLARK et al. CLARK et al. v. WRIGHT.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F. 744

PYLE v. CLARK et al.

CLARK et al. v. WRIGHT.

Nos. 864, 865.

United States Court of Appeals, Eighth Circuit.

March 22, 1897

David Evans (L. R. Rogers with him on brief), for plaintiff in error Geo. M. Pyle and defendant in error A. E. Wright.

Parley L. Williams, for S. H. H. Clark and others, receivers.

Before SANBORN, and THAYER, Circuit Judges, and LOCHREN, District judge.

SANBORN Circuit Judge.

At 4 o'clock in the afternoon on a clear, still day in July 1895, George M. Pyle and A. E. Wright were riding west along Second North street, in Salt Lake City, in a covered wagon drawn by two horses. They were sitting on the front seat of the wagon, Pyle on the north side, and Wright on the south side, and the cover was turned back, so that they could see everywhere. Pyle owned the horses and wagon, and was driving the team and Wright was riding lith him. They were strangers in the city, but, when they were about 100 feet east of Second West street, they observed a railroad upon it, which crossed the street on which they were traveling at right angles. When they were 50 feet from the railroad track, Pyle stopped his team, and an engine passed across the street from north to south, and then returned upon a spur tack, and stopped at the line of south sidewalk, and remained there blowing off steam. Pyle then drove his team up to within 10 to 25 feet of the track, and again stopped it. From this point the men had an unobstructed view for a distance of 2,000 feet to the north up the track on which the train that subsequently struck them came. At a point 2,000 feet north, the track on which the train approached curved to the west and disappeared from view, while a spur track stretched onto the north a distance of a mile and a half. The men did not observe the curve of the main track, but, when they stopped the second time, they looked north along the track, and saw that on which the train subsequently came for 2,000 feet, and the spur track beyond that point for more than a mile, and saw no engine or train approaching from that direction. They then looked south watched the engine which was standing just south of the street for a minute, and Pyle then drove his team slowly onto the main track of the railroad, without again looking to the north, when a train coming from that direction collided with his wagon, and injured him and Wright. This train was operated by S. H. H. Clark and others, the receivers of the Union Pacific Railway Company, and Pyle and Wright brought separate actions against these receivers for negligence in causing their injuries. The two cases were tried together. There was the usual conflict of testimony over the ringing of the bell of the engine and the blowing of its whistle before the accident, and there was evidence that the train was running about 15 miles an hour, in violation of an ordinance, which prohibited a speed of more than eight miles an hour at the place of the collision. Upon this state of facts, the court below instructed the jury to return a verdict in favor of the receivers in Pyle's case, and submitted the case of Wright to the jury, who returned a verdict in his favor. Pyle assigns the ruling of the court directing a verdict in his case as error, and the receivers assign the ruling of the court submitting Wright's case to the jury as error.

There was sufficient evidence of the negligence of the receivers in these cases to warrant the submission of that question to the jury, if there had been no evidence of contributory negligence on the part of the men who were injured by the collision, so that the only question presented here is whether the proof of the negligence of the latter was so conclusive that the court should have instructed the jury that they could not recover. One whose negligence is one of the proximate causes of his injury cannot recover damages of another, even though the negligence of the latter also contributed to it. The question in such a case is not whose negligence was the more proximate cause of the injury, but it is, did the negligence of the complainant directly contribute to it? If it did, that negligence is fatal to his recovery and the negligence of the defendant does not excuse it. Railway Co. v. Davis, 10 U.S.App. 422, 426, 3 C.C.A. 429, 431, and 53 F. 61, 63; Railway Co. v. Moseley, 12 U.S.App. 601, 604, 608, 6 C.C.A. 641, 643, 646, and 57 F. 921-923, 925; Reynolds v. Railway Co., 32 U.S.App. 577, 16 C.C.A. 435, and 69 F. 808, 811; Motey v. Granite Co., 36 U.S.App. 682, 20 C.C.A. 366, and 74 F. 156; Schofield v. Railway Co., 114 U.S. 615, 618, 5 Sup.Ct. 1125; Railroad Co. v. Houston, 95 U.S. 697, 702; Hayden v. Railway Co., 124 Mo. 566, 573, 28 S.W. 74; Wilcox v. Railroad Co., 39 N.Y. 358. Every railroad is a menace of danger. It is the duty of every one who approaches it to look both ways, and to listen, before crossing its track; and, when a diligent use of the senses would have avoided the injury, a failure to use them is, under ordinary circumstances, contributory negligence, and should be so declared by the court. Where contributory negligence is established by the uncontroverted facts of the case, it is the duty of the trial court to instruct the jury that the plaintiff cannot recover. See the cases cited supra, and Railroad Co. v. Whittle, 40 U.S.App. 23, 20 C.C.A. 196, and 74 F. 296, 301; Donaldson v. Railway Co., 21 Minn. 293; Brown's Adm'x v. Railway Co., 22...