Vascacillas v. Southern Pac. Co.

• Decision Date: 07 January 1918
• Docket Number: 3035.
• Citation: 247 F. 8
• Parties: VASCACILLAS v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F. 8

VASCACILLAS v. SOUTHERN PAC. CO.

No. 3035.

United States Court of Appeals, Ninth Circuit.

January 7, 1918

The plaintiff, a teamster, was driving a team, with a wagon loaded with lumber, on a street running north and south in the city of Reno, when he approached a railroad crossing where the defendant had five tracks running east and west. On both sides of the crossing the defendant maintained gates which were operated by a watchman in a tower. The gates being open, the plaintiff proceeded on his way across the tracks. His view to the left was obscured by box cars standing on the tracks. When he had reached the third track, and his team was, as he testified, on the fourth track, he discovered a freight train, then distant about two city blocks approaching from the east on the fourth track. The plaintiff urged his horses to increase their speed, and he would have passed over all the tracks before the train could have reached the crossing, had not the defendant's gate tender lowered the south gates. Those gates descended three or four feet in front of the horses, while they stood upon the fifth track and the wagon was on the fourth track. In the meantime the freight train was being brought to a halt, and there was much noise from escaping of steam. The horses became frightened, and began to rear and plunge. The plaintiff testified that he tried to make the horses break through the gate, but they would not go, so he jumped off on the fifth track, and on the east side of the team for fear of being hit by the train. When he jumped off, he had the lines in his hand, and thereafter was trying to hold his horses, and was alternately looking up to the tower to see if the gateman was going to raise the gates and watching his horses. The gates were raised after having been down about a minute, and immediately the horses started upon a run. The plaintiff tried to hold them, and steer them, but when they turned he was thrown under the wagon and injured. The trial court directed the jury to return a verdict for the defendant holding that the plaintiff was negligent in attempting to cross in front of the oncoming train, and also that he was negligent in not remaining upon his wagon, or in not getting on the wagon again before the horses started.

J. B. Dixon and M. J. Scanlan, both of Reno, Nev., for plaintiff in error.

Frank Cleary, of San Francisco, Cal., and Brown & Belford, of Reno, Nev., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

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

It is the general rule that the fact that safety gates which are maintained by a railroad company at a street crossing are open is an implied invitation to persons traveling the street to enter upon the crossing, and that, while it does not relieve such persons from the duty of taking reasonable precautions to avoid injury by moving trains, it qualifies that duty to the extent that they may reasonably presume that the company's servants have performed their duty in ascertaining that the crossing is safe. Delaware & H. Co. v. Larnard, 161 F. 520, 88 C.C.A. 462; Erie R.R. Co. v. Schultz, 183 F. 673, 106 C.C.A. 23; Erie R. Co. v. Weber, 207 F. 293, 125 C.C.A. 37; Conaty v. New York, etc., Railroad, 164 Mass. 572, 42 N.E. 103; Glushing v. Sharp, 96 N.Y. 676. In Sager v. Railway Co., 70 Kan. 504, 79 P. 132, the court held that open gates tended by a gatekeeper of the railway company, where a public street crosses its tracks, are affirmative assurance to a traveler on the street that his safety will not be imperiled by the descending of a gate arm. In that case the plaintiff, when he approached the railway crossing, found the gates on the south side up, indicating that the tracks were clear for passage over them. When he approached the gates at the north side, one of the gates was lowered about four feet in front of him. He dodged back, and an iron prod attached to the wooden arm of the gate struck him in the groin, causing his injuries. The court said:

'His cause of action rested on the negligence of the gateman in letting down the east arm of the north gate after the two south arms of the gate and the railway tracks had been passed. The only question of contributory negligence which could possibly come into the case under the evidence before us must have relation to the knowledge of plaintiff below respecting the falling of the gate which hurt him. If he neglected to avoid the injury, when it was imminent, by stopping his horses or jumping from his buggy, provided he had sufficient notice of the impending danger, and it was practicable to do so, he was guilty of contributory negligence. * * * We can see no element of contributory negligence in the case, unless it might have arisen at or about the time the east arm of the north gate began to descend, as before stated.'

The purport of the decision was that the question of the plaintiff's contributory negligence was for the jury to decide. In Strotjost v. St. Louis Bridge Terminal Ry. Co. (Mo. App.) 181 S.W. 1082, the court held that, where gates are maintained at a crossing of a public highway by a railroad, one in the highway may regard the opening of the gates as an invitation to him to go forward in safety. In that case the defendant lowered the gate at the other side of the crossing, so the plaintiff's horse veered to one side, overturning the wagon, resulting in injuries to the plaintiff. The court held that the defendant failed to exercise ordinary care for plaintiff's safety. In Gray v. N.Y. Cent. & H.R.R. co., 77 A.D. 1, 78 N.Y.Supp. 653, the defendant's gateman raised the gate and beckoned to plaintiff to come on, and just before plaintiff reached the tracks he suddenly lowered the gate, frightening the horse as a train came from the opposite direction. The court held that whether one who drives forward after such signal, watching only the horse, the crossing, and the gateman, and not looking up the tracks for a train, view of which was substantially obstructed, was guilty of contributory negligence, was a question for the jury. The court said:

'When one of its servants has given such assurances as these of safety, it does not lie with the defendant to complain because the traveler has not been alert to discover conditions which are at variance with those which he has been told exist.'

In Balto. & Ohio R. Co. v. Stumpf, 97 Md. 78, 54 A 978, the court held that the fact that safety gates at a railway...