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

• Decision Date: 28 July 1905
• Docket Number: 2,182.
• Citation: 139 F. 639
• Parties: ROLLINS v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F. 639

ROLLINS v. CHICAGO, M. & ST. P. RY. CO.

No. 2,182.

United States Court of Appeals, Eighth Circuit.

July 28, 1905

While W. M. Rollins, a single man 26 years of age, was going from Charles City, Iowa, on the 26th day of November, 1902, to his home, himself and a team of horses that he was driving were killed, and the buggy in which he was riding was destroyed in a collision with one of the defendant in error's passenger trains, at a public highway crossing known in the evidence as 'Warner's Crossing.' His administrator brings this suit to recover damages therefor. The highway upon which Rollins was traveling runs east and west. Defendant in error's railroad at the point where the collision occurred runs from northwest to southeast, and crosses the highway at an acute angle. Three hundred and sixty-one feet west of the crossing lives a Mr. Warner, whose house is between the highway and the railroad. Northwest along the railroad from the crossing in question 1,311 feet is another crossing called 'Short's Crossing.' Northwest along the railroad a mile and a half is the Cedar River Bridge. At a point 108 feet west from the center of the Warner Crossing the Short's Crossing can be plainly seen. The right of way of the railroad is 100 feet, 50 feet each side of the center of the track. There is nothing in the right of way, after you reach the right of way line, to obstruct the view along the right of way to the northwest. A person standing on the highway and looking directly north can see a train coming on the railroad. At a point 50 feet west from the crossing one can see pretty near to the Cedar River Bridge. At a point 100 feet west from the crossing one can see Short's Crossing. The accident occurred between 9 and 10 o'clock at night. The moon was shining and clouds were flying. The depth of the cut in which the railroad track is located, as you leave the Warner Crossing and go west, is 2 or 3 feet. There are some cherry, apple, and plum trees between Warner's house and the Warner Crossing, which partially obstruct the view of the railroad track when one passes along the highway for about two-thirds of the way to the crossing. At a point 200 feet west of the Warner Crossing, on the highway, the surface of the ground is 1 8/10 feet higher than the rail of the railway at a point opposite. The height of the bottom of an ordinary passenger car window from the rail is 7 feet and 2 inches. The headlight of the train that collided with the team and buggy was lighted, and the train and cars were lighted. Two witnesses for the plaintiff in error, Charles F. Warner and Anna Wood, who were in the Warner house, with closed windows and doors, heard the noise of the coming train when it crossed Cedar River Bridge. C. P. Warner, in the same house, heard the train for two minutes before it passed the house. Charles Ash and Mrs Charles Ash, who live 140 rods south of Short's Crossing heard the train when at said crossing. Maude Johnson, who lives a quarter of a mile east of the crossing in question saw the headlight of the train beyond Short's Crossing. The train was about four minutes late. It was running from 45 to 50 miles an hour. The engineer on the train, who was the only person who saw the team immediately prior to the accident, testified that it was only an instant after he saw them that the collision occurred. The buggy had a top, and this top was up. Two hundred feet west from the crossing in question on the highway the distance between the railroad and highway is 90 feet. Rollins, the deceased, made his home with his father, M. W. Rollins, who lived about 30 miles from Charles City, Iowa. The highway on which Rollins was traveling is called the 'Charles City Road,' and is a main traveled road. Rollins ate supper, on the evening of the day that he was killed, at the house of a Mr. Adams, and, when he left Adams' house on the journey which cost him his life, he was told by Adams to be careful of the cars, to which Rollins replied: 'I will be careful. I am pretty careful of that. As far as that is concerned, I could tie up my lines and team would take me home. ' The wing fences extending from the cattle guards at the Warner Crossing to the right of way line on either side of the track were newly whitewashed five or six days before the accident. The wing fence, which extended from the north cattle guard along the north line of the highway to the right of way line, by reason of the angle at which the railroad crossed the highway, is from 80 to 100 feet in length. The foregoing facts are those upon which the correctness of the ruling of the court below in directing a verdict must be determined. These facts, with one or two exceptions, appear from the evidence of the plaintiff. Photographs of the physical facts surrounding the place of the accident were introduced in evidence, and were considered by the trial court, and were also furnished to this court for...