Southern Pac. Co. v. Ward

• Decision Date: 06 October 1913
• Docket Number: 2,249.
• Parties: SOUTHERN PAC. CO. v. WARD.
• Court: U.S. Court of Appeals — Ninth Circuit

208 F. 385

SOUTHERN PAC. CO. v. WARD.

No. 2,249.

United States Court of Appeals, Ninth Circuit.

October 6, 1913

Rehearing Denied November 17, 1913.

J. W McKinley and R. C. Gortner, both of Los Angeles, Cal., for plaintiff in error.

Edward E. Cothran, of San Francisco, Cal. (M. H. Hyland, of San Francisco, Cal., of counsel), for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

This is an action for damages growing out of the alleged negligent crushing of the leg of the defendant in error under a passenger train of the Southern Pacific Company. Verdict in favor of defendant in error, and the Southern Pacific Company brings error.

The injury occurred at the railroad station of the Southern Pacific Company at Paso Robles, Cal., on October 8, 1910, at about 11 p.m. Soldiers of the United States regular army and the state militia were engaged in joint maneuvers near Atascadero, a few miles south of Paso Robles; between 5,000 and 10,000 men participating. A considerable number of these soldiers, together with defendant in error, who was at that time a first lieutenant in the regular army, and other officers, had made the trip from Atascadero to Paso Robles on that day over the Southern Pacific Company's road on round trip excursion tickets good for their return within two days. The railroad company advertised the maneuvers at Camp Atascadero by means of posters done in colors, and published special schedules for its trains between Paso Robles and Atascadero for the time from October 1st to October 15th. The schedule showed eight trains daily between the two points for the period mentioned, and this special schedule had been made generally public among the soldiers. Under this announced service several hundred regulars and militiamen went up to Paso Robles during the day of the 8th on various north-bound trains. At Paso Robles there were, among other amusements band concerts and swimming contests.

At about 10 o'clock on the evening of October 8th apparently after the amusements had ceased, a crowd began to gather at the Southern Pacific Company's station in Paso Robles. This crowd is variously estimated by the different witnesses as from 450 to 1,000, composed largely of soldiers and containing in their midst several officers in uniform. Defendant in error, Captain (then Lieutenant) Ward, was one of these officers. The station grounds about the depot were open and unfenced, adjoining public roads and open grounds. A train was due at 10:46 p.m., en route through Paso Robles to Atascadero and beyond, being train No. 10, the New Orleans Limited. Train No. 20 was scheduled to go through in the same direction at 11:16, but it is in evidence that this train did not run. Why No. 20 did not run, or whether the crowd knew it would not run, does not appear.

The crowd was orderly and gave no indication or sign of disorder until the train was pulling in. There was no one representing the Southern Pacific Company who attempted in any way to guide or direct the crowd about boarding the train, and no warning or direction as to the manner in which the crowd should take the train was given. As the train came in, some 10 or 15 minutes late, there was a swaying of the crowd and movement toward the train, by reason of which Captain Ward was jostled and thrown, or fell, so that he went under the moving train; the wheels of one of the cars passing over and crushing his right leg, thereby necessitating its amputation at the knee. Captain Ward was near the tracks, but there were a few persons between him and the train when the movement of the crowd began. One witness testified that he was directly next to Captain Ward when the train came in, that they were six or eight feet away from the tracks, and that when the engine went by there were a few persons ahead of him and both were surrounded on all sides by a crowd of people. Captain Light, an officer of the National Guard of California who was present, said:

'I saw the accident happen to Captain Ward. I was standing about between 10 and 12 feet to the rear of Captain Ward and the officer that he was talking to at the time the accident occurred. From the time that we saw the headlight, the train came on, as I say, at about 25 miles an hour; didn't seem any more than the snap of your finger until the time it was past us, and of course the crowd started to move along, and I saw some one fall ahead of me. By that time I had closed in a little closer to the crowd. And there were some people in between Captain Ward and the train, surging forward themselves to meet the train. * * * The train hadn't stopped, but had kept moving until after Captain Ward was hurt. It hadn't made a stop and then started again; the train was in motion when he got hurt. He did not try to board it. I know, because there was people between him and the train.'

There was evidence tending to show that the train approached the station at a rate of speed variously estimated at from 18 to 25 miles an hour and that from this rate of speed members of the crowd gained the impression that it was not going to stop; that the train came in at the usual rate of speed and came to a stop in the usual and customary manner, and at the customary place; that the cars available for passengers, three in number, were well filled, and that before the train stopped it was apparent to the waiting passengers that the accommodations on the train were limited and insufficient for all that desired to return to Atascadero on that train. As the train left Paso Robles, the cars were crowded with people. A witness said:

'There were men sitting on the sides of the seats, standing in between the people that had occupied the train before it arrived at Paso Robles, standing in back of them and in front of them.' There was evidence tending to show that one or more freight cars were standing on the house track between the main track and the depot, that as the train came in the larger portion of the crowd was standing in front of the waiting room of the depot; that when the day coaches passed the crowd moved up in toward the box cars; and that the train stopped with the head of the rear day coach just past the first box car, the rear of the day coach being just past the waiting room of the depot.

Further details will be brought out as the various assignments of error are considered.

In his complaint Captain Ward charges the Southern Pacific Company with liability because of its negligent failure to prepare to accommodate the crowd, its neglect to anticipate a general movement and surging of the crowd to obtain and secure accommodations on the train, its failure to employ means to maintain order in the crowd, and its negligence in approaching the station at an excessive rate of speed and failure to have said train under instant control.

The Southern Pacific Company set up that the accident was not the proximate result of any negligence of the railroad company, and that whatever injuries were suffered by Captain Ward were proximately caused by his own negligence, and that his negligence contributed to cause the accident.

The railroad company contends that the trial court should have directed a verdict in its favor. We are satisfied, however, that in this respect there was no error. Counsel for plaintiff in error are correct in their contention that the duty of the company depends upon the reasonable necessities of the situation and varies according to the circumstances, the kind of crowd, the kind of place, and all other conditions; but we cannot support the argument that under the proofs the issue was purely one of law, for there was ample evidence to require submission to the jury. Taylor v. Penn. Co. (C.C.) 50 F. 755; Penn. Co. v. Stockton, 184 F. 422, 106 C.C.A. 433. It is well settled that a railroad is bound to take good care to guard against dangers reasonably to be anticipated. This general rule extends to one who is at the depot with a ticket entitling him to ride upon a train. The degree of care required of the carrier is the highest, in maintaining order and guarding those whom it transports against such dangers as might be reasonably anticipated or naturally expected to occur. The record before us shows that the company had advertised an excursion and had transported large numbers of persons from Atascadero to Paso Robles on two-day excursion tickets. While these tickets were good until the next day, it was but reasonable to expect that a great many of the excursionists would return on the same day. So far as the record shows, train No. 10 was the last one that ran from Paso Robles to Atascadero on that day. It was a few minutes late, and there was evidence tending to show that the accommodations for passengers thereon were limited, which was apparent to the waiting crowd before the train stopped. The accommodations were in fact insufficient, although if they had been ample we do not see that it would change the case. The apparent tendency of a crowd under such circumstances is, when the cars which they desire to board approach, for the people to endeavor to secure places from whcih they can board the train. There is also an obligation upon a railroad carrier to employ sufficient servants for the protection of its passengers.

It would never do to say that, under the facts of this case, the railroad company could be relieved from responsibility upon the ground that no higher degree of care was called for at its station than was ordinarily exercised when the usual travel was being...