Rich v. Chicago, M. & St. P. Ry. Co.

Citation149 F. 79
Decision Date12 November 1906
Docket Number2,400.
PartiesRICH v. CHICAGO, M. & ST. P. RY. CO. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Charles A. Dickson (Sam Page, on the brief), for plaintiff in error.

W. H Farnsworth (Delos C. Shull and J. U. Sammis, on the brief) for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

ADAMS Circuit Judge.

This was an action instituted under authority of the statutes of Iowa by Carrie Rich, as administratrix of the estate of Hamilton Rich, deceased, to recover damages occasioned by his death. The scene of the accident was the switching yard of defendant company in Sioux City, Iowa. In this yard defendant stores its cars when not in use and makes up its trains for use. It extends from Third street on the north to a little beyond Second street on the south and from what was known as Division street on the east, six or seven blocks westerly. South of and contiguous to the defendant's yard are located the yards of other railroad companies, so that the entire region south of Third street and west of Division street for several blocks is used almost exclusively for yard purposes. Besides making use of its yard for the purposes indicated, defendant's main line for Chicago on the east and for South Dakota on the west runs through it. East of and near to Division street is located defendant's roundhouse, and its locomotives are driven back and forth upon its tracks through the yard when beginning or ending their runs. In these several ways the yard is constantly the scene of great business activity by the defendant. Decedent had lived for some weeks on the north side of Third street in full view of the yard and was familiar with all the uses made of it by defendant. At about 8:30 p.m. of May 17, 1904, the evening being dark, he left his home for some undisclosed purpose; went south a distance of some 200 or 300 feet and apparently was endeavoring to walk across a space covered by seven or eight parallel railway tracks, with the usual accompaniment of switches, guards, and frogs, when he was struck and killed by an engine slowly backing from the west to the roundhouse. It was found later that his shoe had been caught in a frog; the sole and heel of it were found wedged or made fast in the frog after the engine had passed by. Plaintiff in her petition charged that defendant had so permitted the public to cross its yards as to establish an implied license to do so; thereby obligating itself to the exercise of watchfulness and care in switching its cars and operating its engines and trains, with due regard to the rights of licensees. She further charged as the specific acts of negligence on defendant's part which resulted in the death of her husband: (1) That the engine which ran upon him was being operated at a high and unlawful rate of speed; and without (2) ringing a bell; (3) sounding a whistle; (4) maintaining a lookout; or (5) carrying a light on the rear of the tender to warn pedestrians of its approach. Defendant denies the alleged negligent acts, and pleads contributory negligence on the part of decedent.

There is some evidence of the use of the yard by workingmen and their children going to and returning from the bridge which crosses Floyd river on the way to Cudahay's packing house where they were working; but if the decision of this case depended upon establishing the existence of a license in favor of the public to traverse defendant's tracks we should have great doubt as to the sufficiency of the evidence to establish it. But, in the view we take of other questions, it is unnecessary to discuss this one. There is no evidence tending to show that the engine was being backed at a high or improper rate of speed. On the contrary, it was conclusively shown, and is so conceded in argument by plaintiff's counsel that the engine was moving at a very moderate rate of speed. Was there any evidence that no bell was rung or whistle sounded by those in control of the engine as it approached the place where the decedent was attempting to cross the track? Carrie Rich, the widow of decedent, testified that she and a neighbor were standing on her back doorstep at the time her husband left the house. The place where he was hurt was more than a block south from the house, on a track running east and west between two others on each of which stood strings of cars, while another string of cattle cars was standing across Division street, a short distance east. She and her neighbor, with whom she was at the time visiting, testified merely that they did not hear any bell ring or any whistle sound before the accident occurred. They gave no reasons indicating that they would have heard either if it had rung or sounded. Moreover, the proof shows that their attention was not in any manner directed to what was going on in the yard. They say they heard a shout or scream, which was either simultaneous with or after the accident, and that it was the first incident that directed their attention to the yard that evening. The proof shows that they were neither actual observers of the condition of things attending the accident, nor were their situation or engagements such as would likely have enabled them to know anything about the operation of the particular engine in question prior to the accident.

The only other witness who testified for plaintiff on this subject was Ed Wilson, who stated that after decedent left his home he started and followed about half a block behind him. He testified that his attention was not called to any of the circumstances attending the accident until after he heard a cry or loud groan (probably the one emanating from the decedent at the time he was hurt); that on hearing the cry, he ran and got to the decedent about two minutes after the accident occurred. He said he did not see the engine backing down because there was a string of cars between him and it, and that there was another string of cars on the south side of the engine as it backed eastwardly. Situated as thus indicated, with no actual observation of the operation and with a string of cars so intervening between him and the engine as to make notice of its operation unlikely, this witness also said he did not hear any bell ring or whistle sound. Like the other two witnesses, he did not give any reasons why he would likely have noticed either if it had occurred, and his occupation at the time was such as afforded him neither interest in what was going on nor favorable opportunity to observe it.

In these circumstances the evidence under consideration was purely of a negative character and does not commend itself to common intelligence or common experience as of any value. The witnesses may not have heard any warning given and yet it may have been given. The value of such evidence depends upon the existence of facts showing the likelihood that the warning would not have been given if the witnesses did not hear it. Such facts are absent in this case and we are left with the bald statement that the witnesses did not hear the warning as the only evidence that it was not given. They lived close to the yard and, as common experience teaches, had doubtless become so accustomed to the constantly ringing bells and sounding whistles as to be totally indifferent to them. As against this kind of evidence there is the positive testimony, unchallenged as to credibility, of the engineer and fireman who were at work on the engine in question, and two others who stood near by and in front of it as it was moving eastwardly, that the bell on the engine was constantly ringing as it was being backed eastwardly that night. This evidence afforded by the two men whose duty it was to ring the bell, and by two others who actually saw the engine and noted its operations is positive and unequivocal in its character. The testimony of plaintiff's witnesses, on the other hand, was of such a character, and attended by such circumstances as to be entirely true without affording any evidence of the fact sought to be established. This court has heretofore decided that in circumstances of the kind just disclosed there is no real conflict of evidence.

In the case of Chicago, etc., Ry. Co. v. Andrews, 64 C.C.A. 399, 130 F. 65, speaking by Judge Van Devanter it said:

'But where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who were in a situation favorable for observation, and who testify affirmatively and positively to the occurrence.'

In the case of Baltimore & O.R....

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