Rogers v. Chicago, RI & P. Ry. Co.

• Decision Date: 18 February 1930
• Docket Number: No. 8520.,8520.
• Citation: 39 F.2d 601
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: ROGERS v. CHICAGO, R. I. & P. RY. CO.

39 F.2d 601 (1930)

ROGERS v. CHICAGO, R. I. & P. RY. CO.

No. 8520.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1930.

William M. Giller, of Omaha, Neb. (Frank L. Weaver, of Omaha, Neb., on the brief), for appellant.

Guy C. Chambers, of Lincoln, Neb. (E. P. Holmes, of Lincoln, Neb., on the brief), for appellee.

Before STONE, Circuit Judge, and MUNGER and REEVES, District Judges.

REEVES, District Judge.

Appellant claims damages for injuries alleged to have been sustained by him at a railroad crossing. The trial court deemed his evidence insufficient to warrant recovery and peremptorily directed a verdict for the appellee. While the cause was pending in a state court and before removal to the federal court, appellant suffered a similar defeat, but upon appeal to the Supreme Court of Nebraska it was there held that his evidence was sufficient to warrant consideration by a jury.

After such reversal of the case, a resident defendant deceased, and there being then a diversity of citizenship, the cause was removed to the national court.

The appellant contends that his evidence was sufficient to justify submission to the jury, and moreover he asserts that the decision of the Supreme Court of the State of Nebraska has become the law of the case and that this court is controlled thereby. In view of the contentions of the parties it will be necessary to note the facts.

About 2:30 p. m. on June 28, 1923, appellant, hereinafter referred to as plaintiff, while driving his automobile, approached a railroad crossing of the appellee, hereinafter referred to as defendant. The point of intersection of the highway and railroad was between Fairbury, Neb., and Omaha, Neb.

Defendant's railroad track at that point runs in an eastwardly and westwardly direction. Plaintiff had been traveling on a road that was within inclosed land. He emerged from said inclosure through a gate about 75 yards west of the crossing. This was in close proximity to defendant's right of way and on the north side thereof. He then traveled along the highway eastwardly and parallel with the fence of defendant's right of way until said highway turned south at right angles. He passed through an open gate of the right of way fence to the railroad track, where his automobile was hit by the locomotive of one of defendant's passenger trains traveling eastwardly.

After passing through the gate of the inclosed land, he looked to the southwest and at a distance of about one-fourth mile could see the railroad track which was then clear. His view of the track in the immediate vicinity was obstructed by a high embankment. While he traveled to the point where the road turned to the south and over the railroad, he was unable to see the track. After turning south the track was hidden by the embankment till he reached a point approximately 16 feet from the north rail. There he had a clear view of the railroad track westwardly for about 300 feet. He then estimated his speed at from 3 to 5 miles per hour. He said that he was traveling in low speed or low gear. The embankment on the right of way which had obstructed his view extended up to 15 or 16 feet of the north rail. When plaintiff first saw the railroad train, he was within 10 feet of the north rail, and the front end of his automobile was approximately within 5 feet of the north rail. At the moment he first saw the train approaching it was "anywhere from a hundred to two hundred feet, it might have been three hundred feet, but not so very far away." He estimated its speed from 45 to 50 miles per hour. He applied his brakes and sought to reverse his direction but "killed" his engine in the effort. His automobile was hit by defendant's engine and was carried several feet down the track and overturned.

Plaintiff bases his right of recovery upon the provisions of section 8834, Compiled Statutes 1922 of Nebraska, as follows: "In all actions brought to recover damages for injuries to a person * * * caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury."

Plaintiff asserts that the station of Rumsey was at or near the point of the collision and that the engineer of defendant's train failed to sound the whistle or ring the bell either for the crossing or for said station. He testified that he had listened for such signals but that none had been given. It is contended that there was a twofold duty to give said signals because there were both a public crossing and a railway station for receiving and discharging passengers for some trains.

1. The Supreme Court of Nebraska, in Tyson v. Missouri P. R. Corp. in Nebraska, 113 Neb. 504, 203 N. W. 560, 561, has construed the comparative negligence statute, relied upon by plaintiff, as follows: "Where * * * it is shown beyond reasonable dispute by plaintiff's own testimony that the plaintiff's negligence is more than slight as compared with that of the defendant, it is the duty of the court to enter a judgment of dismissal." Dodds v. Omaha & C. B. St. Ry. Co., 104 Neb. 692, 178 N. W. 258; Haffke v. Missouri Pac. R. Corp. in Nebraska, 110 Neb. 125, 193 N. W. 257 and Allen v. Omaha & S. I. Ry. Co., 115 Neb. 221, 212 N. W. 428.

If therefore plaintiff's negligence was more than slight as compared with that of the defendant, the trial court was correct in directing a verdict on behalf of the defendant.

2. In construing and applying said statute the Nebraska courts have followed the usual doctrines with respect to travelers approaching railroad tracks at crossings. In Askey v. Chicago B. & Q. R. Co., 101 Neb. 266, 162 N. W. 647, 649, the court defined the duty of a traveler on a highway, when approaching a railroad crossing, as follows:

"To look and listen for the approach of trains. He must look where by looking he could see, and listen where by listening he could hear. * * *

"It is the duty of one operating an automobile and approaching a crossing with which he is familiar, and where the view is obstructed until near the track, to drive his car at such speed that he can stop it after discovering a train in time to avoid a collision. The high speed which prevents such control at a railroad crossing is negligence as a matter of law. * * * This rule springs from the rule...