Southern Ry Co v. Walters
| Decision Date | 23 November 1931 |
| Docket Number | No. 52,52 |
| Citation | 76 L.Ed. 239,52 S.Ct. 58,284 U.S. 190 |
| Parties | SOUTHERN RY. CO. v. WALTERS |
| Court | U.S. Supreme Court |
Messrs. Bruce A. Campbell, of East St. Louis, Ill., and H. O'B. Cooper, S. R. Prince, and L. E. Jeffries, all of Washington, D. C., for petitioner.
Mr. Charles A. Lich, of St. Louis, Mo., for respondent.
This action was instituted in a state court and removed to the District Court for Eastern Missouri. Respondent, the minor plaintiff, averred in his declaration that, as he was in the act of crossing defendant's track on Bond avenue, East St. Louis, he was struck by a train and seriously injured. The negligence alleged was failure to sound a bell or other signal when the train was approaching the crossing, failure to maintain a proper and sufficient lookout, and failure to comply with an order of the Illinois Commerce Commission requiring defendant to stop all trains and flag the crossing before they crossed Bond avenue. The answer was a general denial.
At the trial both parties presented proofs, and at the close of the plaintiff's case, as well as at the conclusion of all the evidence, the defendant moved for a binding direction, which was refused. The trial judge withdrew from the jury's consideration all the specifications of negligence except that which charged a failure to stop the train and flag the crossing before proceeding over Bond avenue. He charged the jury that, if these precautions were omitted, the verdict should be for plaintiff, but, if they were observed, they should find for defendant. The jury found for the plaintiff, and on appeal the Circuit Court of Appeals affirmed a judgment entered upon that verdict.1 This Court granted certiorari.2 We need consider only whether upon the whole case defendant was entitled to a binding direction.
The tracks on which the accident occurred extend from the railway company's main line to a freight yard and run approximately north and south, almost parallel with, and some seventy-five feet west of, Eighth street. Bond avenue, which extends eastwardly and westwardly, crosses the tracks at a right angle. The train involved in the accident consisted of a locomotive running tender-first and pulling fifty freight cars in a northerly direction from the freight yard towards the main tracks.
The plaintiff called four adult witnesses who were at the scene of the accident, none of whom saw its actual occurrence. Each of them was to the east of the train and each first noticed the plaintiff lying to the west of it after the locomotive and several cars had completely crossed Bond avenue.
The plaintiff, who was between five and six years of age at the time of the accident, testified that he was about to cross the railroad tracks from west to east and was struck by the front of the locomotive. He stated repeatedly that the train was coming from the north, whereas it is beyond question that it was coming from the south; and he described the portion of the locomotive which struck him as the front end which had the cowcatcher and headlight on it, although it is beyond question that the tender was in front. He twice denied that he saw the train before he was struck, then said he saw it half a block distant when he was on the first track (there were three tracks at this point and the train was on the easternmost), and did not see it again until just as he was struck. He did not testify whether or not the train stopped.
A boy, nine years old at the date of the occurrence, who was standing near the crossing, deposed that several boys traversed the tracks before the train reached Bond avenue, and that the plaintiff, following these boys, was hit by it and thrown back. He stated there was a box car in front of the locomotive, and that the car had passed before the plaintiff received his injury. He probably confused the tender with a box car, and his description of the accident would indicate that the plaintiff collided with...
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