St. Louis & S.F.R. Co. v. Whittle

• Decision Date: 17 April 1896
• Docket Number: 633.
• Citation: 74 F. 296
• Parties: ST. LOUIS & S.F.R. CO. v. WHITTLE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

74 F. 296

ST. LOUIS & S.F.R. CO. v. WHITTLE et al.

No. 633.

United States Court of Appeals, Eighth Circuit.

April 17, 1896

B. R Davidson (L. F. Parker was with him on the brief), for plaintiff in error.

Ira D Oglesby (John H. Rogers was with him on the brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This suit was brought by Bettie Whittle, Charlie Whittle, and Frank Whittle, the defendants in error, against the St. Louis & San Francisco Railway Company, the plaintiff in error, to recover damages on account of the death of W. L. Whittle, who was killed at Cameron, in the Indian Territory, on the morning of Nvember 9, 1893, by being run over by one of the defendant company's passenger trains. The deceased, W. L Whittle, was the husband of Bettie Whittle, one of the defendants in error, and the father of Charlie Whittle and Frank Whittle, the other defendants in error. The material facts on which the decision of the case depends do not admit of any dispute under the testimony preserved in the bill of exceptions, and they are as follows: The deceased, W. L Whittle, resided with his family about four miles from the town of Cameron, in the Indian Territory. On the afternoon of November 8, 1893, he came to the defendant company's station in said town, in company with John E. Martin, and one Stewart, to take a train for Ft. Smith, Ark. Tickets for the intended trip were purchased of the defendant company's station agent about 5 or 6 o'clock p.m. of that day, but the train on which they expected to take passage was not due at the station from the south until about midnight. The train in question did not stop at Cameron unless it was flagged, but no notice to that effect was given to the deceased when he purchased his ticket. The deceased came to the station with his two companions, above named, a short time before midnight, and was standing on the station platform as the train approached from the south. The station agent had retired for the night before the train arrived, and there was no one present representing the defendant company to flag the train. For that reason, a bystander on the station platform, who knew that the deceased desired to board the train, lit a match, and waved it as a stop signal, when the engine was about 200 yards distant from the center of the station platform. The signal was seen by the engineer, and responded to by two short blasts of the whistle, but, owing to its speed, the train ran past the station a short distance; so that, when it stopped, the rear end of the rear car was about 200 feet north of the north end of the station. The night was very dark and misty. There were no lights about the station except a dim light in one of the station windows. When the train came to a halt, one of the bystanders on the station platform remarked to the persons who were intending to board the train, 'You can go ahead and get on,' or words to that effect; whereupon Whittle, the deceased, stepped down from the platform onto the track over which the train had just passed, and started up the track to board the train, walking or running for that purpose between the rails. Very soon after the train stopped, the engineer reversed his engine, for the purpose of backing the train down to the station, and enabling those who desired to do so to get aboard. By the backward movement of the train, the deceased was caught on the track, and instantly killed, at a point a little north of the north end of the station platform. The evidence was conflicting as to whether there were or were not lights on the rear end of the train, and as to whether the engine bell was rung before the train started to back up. One of the plaintiff's witnesses, George W. Noble, who was standing on the station platform when the accident occurred, testified that he heard the puffing of the engine when the train began to back up. Another witness for the plaintiff, John E. Martin, who was brother-in-law of the deceased, testified, in substance, that he had not left the platform when the accident occurred, and that he was not aware that the train had begun to move either backward or forward, after it halted north of the station, until he was made aware of the fact that the train was moving backward by the outcry of the deceased when he was run over.

Numerous errors have been assigned to the action of the trial court, but the view that we have felt ourselves constrained to take will only render it necessary to notice two of the alleged errors.

At the instance of the plaintiff below, the circuit court gave, among others, the following instruction; and the defendant company duly excepted thereto:

'The court further instructs the jury that it is not every negligent act on the part of deceased that amounts to such contributory negligence as would for that reason preclude plaintiff's right to recover. Although the jury may believe from the evidence that the deceased was guilty of some negligence, yet, if the jury believe from all the evidence that the defendant's employes operating the train by which the deceased was killed could, by the exercise of reasonable care and prudence upon their part, have avoided killing the deceased notwithstanding his negligence, then the negligence of the deceased of itself would not prevent plaintiffs from recovering in this action.'

This instruction, as applied to the undisputed facts which were proven at the trial, was misleading, and therefore erroneous. There was no evidence before the jury tending to show that either the engineer, conductor, or any other trainman had any knowledge or reason to believe that the deceased was on the track in the rear of the train when it began to back up after it had run past the station.

In the absence of such evidence, the rule of law that was invoked by the plaintiffs had no application to the case in hand, and ought not to have been given. An instruction like the one now in question is very proper, no doubt, in those cases where it appears that a person negligently placed himself in a position of danger, and the fact became known to the alleged wrongdoer in time to have taken certain precautions to avoid injuring him, which were not taken. If an engineer in charge of a train sees a person walking on a railroad track, even at a place where he has no right to walk, he must, nevertheless, make all reasonable efforts to avoid injuring him. The fact that one person is guilty of negligence in placing himself in a dangerous situation does not absolve another person, when the fact becomes known, of the duty to make a reasonable effort to protect him from injury or from the consequences of his own carelessness. This principle is well established in the Law of Negligence, but it has no application except in those instances where the plaintiff's dangerous situation was known to the defendant, and the latter thereafter omitted some reasonable precaution which might have been taken, and which precaution, if taken, would have resulted in preventing the accident. In such cases it is the last omission of duty which the law esteems the proximate cause of the injury, and it accordingly permits a recovery by the injured party notwithstanding his prior negligence. Railway v. Monday, 49 Ark. 257, 4 S.W. 782; Railway Co. v. Cavenesse, 48 Ark. 106, 2 S.W. 505; Shear. & R. Neg. Sec. 99, and cases there cites; Whart. Neg. Sec. 323; Thomp. Neg. 1156. As we have before remarked, there was no testimony in the case at bar which tended to show that the trainmen either knew or suspected that the deceased had placed himself in a position where he might be run over and killed as the train backed up, and, in the absence of such proof, it was erroneous to instruct the jury on that hypothesis.

The circuit court further erred, we think, in refusing, upon the testimony contained in this record, to charge the jury as it was requested to do, that the deceased was guilty of contributory negligence, and that there could be no recovery for that reason. The testimony showed without contradiction that the deceased voluntarily placed himself in a position of great danger, by going upon the track, and walking or running thereon towards the train, without waiting even for a moment to ascertain if it would back down to the station. The night was dark and foggy; so dark in fact, as all the witnesses say, that it was impossible to tell, merely by looking, when the train began to move backward towards the station. If this be so, and if it is also true, as was contended by the plaintiffs below, that there were no lights on the rear end of the train, and insufficient light about the platform, these facts rendered the risks that were assumed by the deceased in walking or running up the track so much the greater. Besides, as the train had actually stopped in obedience to the stop signal, and as the deceased had not been invited or ordered by any of the trainmen or other employes of the railroad company to come forward and get aboard, he must have known that the train was at least as likely to move backward as to move forward, and to do so very soon. The danger to be apprehended, therefore, from going on the track under these circumstances, was great and imminent.

It has been repeatedly held that a railroad track is itself a warning of danger, and that one who voluntarily goes or walks upon a railroad track without looking to see if a train is approaching when his view is unobstructed is, as a matter of law, guilty of a want of ordinary care, which precludes a recovery for an injury sustained, even though the railroad company itself was guilty of negligence. Such was the rule of law declared by this court, after a full consideration of the subject, in Railway Co. v....