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

• Decision Date: 11 October 1909
• Docket Number: 2,982.
• Citation: 173 F. 358
• Parties: ST. LOUIS & S.F.R. CO. v. SUMMERS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 358

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

No. 2,982.

United States Court of Appeals, Eighth Circuit.

October 11, 1909

A passenger train, operated by the defendant company and running eastwardly at a rate of speed variously estimated at 10, 15, 25, and 30 miles an hour through the town of Ada, in the Indian Territory, came into collision at a street crossing with a team driven by David Magar, and he was killed. His widow and minor children instituted this suit to recover damages. They charged in their complaint that the railroad company was negligent in operating its train at an excessive rate of speed, in violating a speed ordinance of the town, in failing to keep a proper lookout, in failing to stop the train before it reached the crossing, and that as a result of these acts of negligence Magar lost his life and they were damaged. The defendant denied the acts of negligence, and pleaded contributory negligence as its defense. In the course of the trial it became manifest that the plea of contributory negligence had been sustained, and the trial court so instructed the jury, but submitted the cause on the sole issue whether, notwithstanding the contributory negligence of Magar, the railroad company might after discovering his peril, by the exercise of ordinary care, have avoided a collision and prevented the death. Defendant at the close of the plaintiffs' evidence moved for an instructed verdict in its favor, on the ground that there was no substantial evidence to support a verdict for plaintiffs on this issue. This motion was denied. Defendant reserved proper exceptions to the ruling and declined to offer any testimony in its behalf. A verdict and judgment in favor of plaintiffs followed, and defendant now prosecutes error.

E. T Miller (W. F. Evans, on the brief), for plaintiff in error.

Clinton A. Galbraith, Tom D. McKeown, and A. C. Cruce, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

ADAMS Circuit Judge (after stating the facts as above).

The facts, we think, show that the trial court was right in holding that the decedent was guilty of such contributory negligence as precluded plaintiffs' recovery by reason of any of the primary acts of negligence complained of, even if they were established, and no complaint is made of that ruling by plaintiff.

This leaves for our consideration the sole question whether there was any evidence to support the finding necessarily made by the jury that defendant railroad company could, by the exercise of ordinary care, after discovering that the decedent was in a situation of peril and danger, have avoided injuring him. The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to imminent peril and danger, and the railroad company, after actually discovering that condition, could, by the exercise of ordinary care, have stopped its train, or otherwise have avoided injuring him, and failed to do so. Chunn v. City & Suburban Railway, 207 U.S. 302, 28 Sup.Ct. 63, 52 L.Ed. 219; Denver City Tramway Co. v Cobb, 164 F. 41, 90 C.C.A. 459. But in the application of this rule care must be taken to avoid undermining the rule of contributory negligence. Such...