Union Pac. R. Co. v. Rosewater

• Decision Date: 28 October 1907
• Docket Number: 2,468.
• Citation: 157 F. 168
• Parties: UNION PAC. R. CO. et al. v. ROSEWATER.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F. 168

UNION PAC. R. CO. et al. v. ROSEWATER.

No. 2,468.

United States Court of Appeals, Eighth Circuit.

October 28, 1907

Edson Rich and William Baird (W. S. Kenyon, on the brief), for plaintiffs in error.

W. J Connell (Simeon Bloom, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

Charles Rosewater sued the Union Pacific and the Illinois Central railroad companies for personal injuries sustained in a collision at a crossing. He recovered a judgment against them jointly, and they now seek its reversal. The facts developed at the trial are as follows: The plaintiff, a physician, was driving in his phaeton northward on Thirteenth street in Omaha, Neb., about 8 o'clock of a January evening. The street is one of the important, much traveled thoroughfares of the city. As he was approaching the intersecting tracks of the Union Pacific, upon one or more of which the Illinois Central had the right to operate its trains, he was signaled to stop by a flagman who was in the service of both companies. The signal was given by lantern, and the plaintiff stopped with his horse's head three or four feet south of the south track. There were four of these tracks, and, for convenience, they will be referred to numerically beginning with the one nearest the plaintiff. They crossed the street at somewhat of an angle-- not squarely-- and as they proceeded westward they curved towards the south, out of sight. The plaintiff's view to his left or westward was obstructed to some considerable extent by a stone wall built along the side of the street to support a viaduct which crossed overhead behind him. The north end of the wall was about 10 feet from the south track, at which point the wall was 6.2 feet high. As it receded southward along the street side, the wall rose in height until it attained its maximum for the support of the overhead viaduct structure. From the end near the south track the wall curved westward at substantially the same height, and served to retain a fill upon which was laid the track that crossed on the viaduct. There was a similar obstruction on the east side of the street to the right of the plaintiff as he sat in his phaeton, but we are not specially concerned with it. The flagman gave plaintiff the stop signal from his customary stand on the north side of the tracks. Immediately after the plaintiff stopped, two Union Pacific engines, coupled together, went westward over the crossing upon the third track. After they passed, the flagman both signaled with his lantern and verbally directed plaintiff to cross. As to this there was a conflict in the evidence, but as that was the issue which the trial court submitted to the jury we take the verdict as settling the fact here. In obedience to the flagman's direction the plaintiff applied the whip to his horse, and drove over the first track and upon the second where he was struck by an Illinois Central train coming from the west at a speed variously estimated by witnesses at from 15 to 35 miles per hour. The injuries complained of were caused by this collision. The headlight of the locomotive was burning. The flagman knew the train was coming. There was testimony that considerable steam and smoke from the Union Pacific engines were driven by the wind towards the plaintiff, but whether they were sufficient to obscure his vision as he started to cross remains an unsettled question. The issues of fact were so narrowed by the trial court that the verdict does not answer it. A civil engineer testified and his testimony was not denied, that a man standing about five feet south of the first track where the plaintiff's horse stood could see westward upon the second track, over which the Illinois Central train came, a distance of 375 feet. But the plaintiff, as he sat in his vehicle, was 6 or 7 feet further away, and no measurements were taken from his position. If the plaintiff had driven forward to place himself at the point from which the measurements were taken, his horse would have been upon the first track. The first and second tracks were a little more than 10 feet apart. The plaintiff testified that, upon receiving the direction of the flagman, he first looked to the left and to the right, and perceiving no train approaching he drove forward. He also said that, after starting forward, he did not again look along the tracks, but 'relied on the order of the flagman, together with the invisibleness of any danger.'

These are the substantial facts, and on them the defendants moved the trial court for a directed verdict (1) because no negligence on their part was disclosed-- that is to say, no negligence of their flagman; and (2) because contributory negligence of the plaintiff was shown.

The first of these assertions, obviously untenable, need not be further mentioned. As to the second: Assuming for the moment that the maintenance of a flagman at the crossing, and his signal to the plaintiff to cross the tracks, did not relieve the latter from the duty to take those precautions for his safety which the law imposes in cases where no flagmen are present, can it be said the evidence that he failed in his duty was so conclusive as to justify a court in holding that he negligently contributed to his own injury? We think not. It is a settled rule of law that the traveler upon a highway must look and listen before venturing upon the track, and that he must, if possible, perform that duty at some point in his approach where performance will be serviceable. It is conceded that the plaintiff stopped close to the track, and he testified that after receiving the flagman's direction, and before venturing further, he looked for coming trains, but saw nothing. It is true that after driving on the track he did not again look to the right and left, but we cannot say that it was his duty to do so. The rule of law does not go so far. When a traveler upon a highway is approaching a railroad crossing-- a place of danger-- it is altogether reasonable that he should use his senses to discover whether it is safe to go upon it, and also to stop before doing so if the physical surroundings make that further precaution necessary. He is then in safety and entirely master of his movements, and, as all reasonable minds agree that such measure of care should be taken for the preservation of life and limb, the law has prescribed its exercise as an imperative duty. But when the traveler has performed his full duty in that respect, and has driven upon the crossing at the invitation of a flagman stationed there by the railroad company to assist in the prevention of accidents, whether, in addition to his attention to the guidance of his vehicle, he should continue to look to the right and to the left is a more doubtful proposition. He is then in a position of possible peril, and, in view of the various emergencies likely to arise, just what particular precaution he should take is not so clear and plain as to justify its prescription as a definite, fixed rule of conduct. Were it otherwise, the doing of the very thing prescribed might lead to disaster. The measure of care and caution to be observed in such cases should be more adjustable to the particular conditions and emergencies, and is that active watchfulness which ordinarily prudent men would adopt under like circumstances; and the question whether the traveler fell short is one for the jury. In the very case before us, had the plaintiff looked while his horse was upon the first track and seen the headlight of the rapidly approaching train, it is doubtful that in the darkness he could have told upon which of the tracks, running closely parallel, it was coming; and in case of uncertainty his natural impulse would have been to hasten forward rather than to turn backward. It is not at all clear that the precautions which counsel claim to be imperative would have been effectual to prevent the collision. The plaintiff was not a pedestrian, having quick control of his own movements, whose vigilant use of the senses affords almost a complete assurance of his personal safety; but he was incumbered with a horse and vehicle, more unwieldy in management, and which to some extent naturally required attention. This distinction is recognized in Blount v. Railway, 9 C.C.A. 526, 61 F. 375, in which it was held that a pedestrian who accepted the invitation of open gates was nevertheless guilty of contributory negligence in failing to look and listen.

But it is said that the physical facts show that the plaintiff could have seen had he looked before venturing upon the crossing unless the presence of steam and smoke temporarily obscured his vision, and that in the latter case it was his duty to wait until they passed away. Clear physical facts prevail over the testimony of a witness and over the presumption that one injured or killed took care for his safety (Tomlinson v. Railway, 67 C.C.A. 218, 134 F. 233) and if plaintiff could have seen it must be assumed that he did not look or that looking he tried to cross...