Wabash R. Co. v. De Tar

• Decision Date: 15 November 1905
• Docket Number: 2,018.
• Citation: 141 F. 932
• Parties: WABASH R. CO. v. DE TAR.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 932

WABASH R. CO. v. DE TAR.

No. 2,018.

United States Court of Appeals, Eighth Circuit.

November 15, 1905

(Syllabus by the Court.)

Because the natural instinct of self-preservation generally prompts men to acts of care and caution when approaching or in the presence of danger, there is, in the absence of credible evidence of the actual fact in any instance, a presumption of the exercise of due care and caution; but, like other presumptions of fact arising from the ordinary or usual conduct of men, rather than from what is invariable or universal, this presumption is disputable, and cannot exist where it is incompatible with the conduct of the person to whom it is sought to apply it, which may be shown by the testimony of eyewitnesses to his movements, or by evidence of the physical surroundings and other conditions at the time.

The presumption of the exercise of due care and caution on the part of one approaching a place of danger is essentially inferior in probative force and weight to credible evidence either direct or circumstantial, explanatory of the actual occurrence, and, in those courts where the presumption underlies the rule that the burden of proving contributory negligence rests upon the defendant and must be maintained by a fair preponderance of the evidence, its force and influence are so largely embodied in the enforcement of that rule that it has little independent application, save as it rests upon a general, but not invariable, rule of human experience which may and should be considered in determining the credibility of evidence and the weight to be given to it when these matters are not otherwise entirely clear.

James P. Hewitt (George H. Carr, A. C. Parker, and Craig T. Wright on the brief), for plaintiff in error,

J. C Mabry (Byron C. Ward and J, Edward Mershon, on the brief), for defendant in error.

Before VAN DEVANTER and HOOK, Circuit Judges, and AMIDON, District judge.

VAN DEVANTER, Circuit Judge.

This was an action to recover damages for the death of William De Tar, who was instantly killed by a train which came in collision with his wagon as he was driving over the crossing of the Wabash Railroad and Chestnut street in the outer part of Albia, Iowa. The petition charged the railroad company with negligence in that the speed of the train was excessive no signal of its approach was given, and no precaution to discover the presence of travelers at the crossing was taken by the enginemen. The answer traversed this charge, and also alleged that the deceased was guilty of negligence contributing to the injury in that he drove upon the crossing without exercising reasonable care for his own safety. The trial in the Circuit Court resulted in a verdict and judgment for the plaintiff. It appeared from the evidence that the collision occurred about nine o'clock in the morning of a day in January; that the deceased was a mail carrier in the rural delivery service, was quite familiar with the crossing, having passed over it with his wagon and team almost daily for many months; and that the wagon was partially inclosed, and the team was gentle. In respect of the charge that no signals of the approach of the train were given, the evidence was conflicting. There was no direct evidence, in the sense of testimony from eyewitnesses, as to what, if any, precautions for his own safety were taken by the deceased as he approached the crossing; but there was at least substantial evidence tending to show that the physical surroundings and other conditions at the time were such that, had he made reasonable use of his senses of sight and hearing, he would have discovered the approaching train before he drove upon the crossing and in ample time to have avoided the collision. In its charge to the jury, the court, after stating that on the issue of contributory negligence the railroad company had the burden of proof and must maintain it by a fair preponderance of the evidence, gave the following instruction:

'It is a law of nature that you and I recognize that every man wants to live. It is so with men, unless their minds are disordered in some way or other. That is a natural instinct implanted within us, the desire to live. That is entitled to weight as evidence, as an affirmative fact, and can only be offset by affirmative evidence on the other side. How much evidence does it take to ride down the presumption that every man is presumed not to do a negligent act? That is to say, whether one witness or several, or whether it may be ridden down by circumstances and situation and attendant facts, but this presumption that every man has a desire to live is entitled to weight as evidence. It is as though Mr.De Tar could in some way speak to us.'

And in that connection the following requests to charge, tendered by the defendant, were refused:

'If you find from the evidence introduced that said Wm. De Tar did see or hear the train, or by exercising reasonable care he could have seen it, in time to avoid the accident, then the presumption that he exercised care in order to preserve his life is overcome by the evidence, and plaintiff cannot recover.

'If you first find that defendant was negligent, then the presumption that said Wm. De Tar exercised reasonable care in order to preserve his life would be sufficient to warrant a recovery, if there was no opposing evidence upon that question; but in this case affirmative evidence has been introduced tending to show negligence upon the part of said De Tar, and, if you find there is sufficient evidence to establish his negligence by a fair preponderance of the evidence, there can be no recovery by the plaintiff in this case.'

Complaint is made of these rulings, and we think it is well grounded. Because the natural instinct of self-preservation generally prompts men to acts of care and caution when approaching or in the presence of danger, there is, in the absence of credible evidence of the actual fact in any instance, a presumption of the exercise of due care and caution. Railroad Company v. Gladmon, 15 Wall. 401, 407, 21 L.Ed. 114; Continental Improvement Co. v. Stead, 95 U.S. 161, 165, 24 L.Ed. 403; Baltimore & Ohio R. R. Co. v. Griffith, 159 U.S. 603, 610, 16 Sup.Ct. 105, 40 L.Ed. 274; Texas & Pacific Ry. Co, v. Gentry, 163 U.S. 353, 366, 16 Sup. ct. 1104, 41 L.Ed. 186; Baltimore & Potomac R. R. Co. v. Landrigan, 191 U.S, 461, 474, 24 Sup.Ct. 137, 48 L.Ed. 262; City of Naples, 16 C.C.A. 421, 424, 69 F. 794; Northern Pacific Ry. Co. v. Spike, 57 C.C.A. 384, 121 F. 44, But it is a presumption of fact, not of law, and, like other presumptions arising from the ordinary or usual conduct of men, rather than from what is invariable or universal, it is disputable, and cannot exist where it is incompatible with the conduct of the person to whom it is sought to apply it. Fresh v. Gilson, 16 Pet. 327, 331, 10 L.Ed. 982; Insurance Co. v. Weide, 11 Wall. 438, 441, 20 L.Ed. 197; French v. Edwards, 13 Wall. 506, 514, 20 L.Ed. 702; Lincoln v. French, 105 U.S. 614, 617, 26 L.Ed. 1189; Schutz v. Jordan, 141 U.S. 213, 220, 11 Sup.Ct. 906, 35 L.Ed. 705.

Thus, in Continental Improvement Co. v. Stead, supra, it was said of persons approaching and passing over railroad crossings:

'They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them, such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault.'

And in Baltimore & Potomac R.R. Co. v. Landrigan, supra, where approval was given to an instruction to the effect that, in the absence of evidence on the subject, there would be a presumption of the exercise of due care by one attempting to pass over a railroad crossing, but that the presumption might be rebutted by evidence of the surrounding circumstances, it was said:

'There are few presumptions, based on human feelings or experience, that have surer foundation than that expressed in the instruction objected to. But, notwithstanding the incentive to the contrary, men are sometimes inattentive, careless, or reckless of danger. These the law does not excuse not does it distinguish between the degrees of negligence.'

So also, in the cases City of Naples and Northern Pacific Ry. Co. v. Spike, supra, it was held by this court that the presumption arising from the natural instinct of self-preservation stands in the place of positive proof 'in the absence of countervailing evidence. ' As the presumption reflects only the ordinary or usual conduct of men, and is at utter variance with what they sometimes do, it is not entitled to probative force or weight as affirmative or positive evidence, but only to the force or effect of a rebuttable inference of fact which must necessarily yield to credible evidence of the actual occurrence. Nor is it essential that such evidence shall come from eyewitnesses to the movements of the person injured, because the presumption must equally yield to evidence which shows that the physical surrounding were such that the injury would not have occurred had he been in the exercise of reasonable care. Tomlinson v. Chicago, etc., Ry. Co., 67 C.C.A. 218, 134 F. 233; St. Louis & San Francisco R.R. Co. v. Chapman (C.C.A.), 140 F. 129; Rollins v. Railway Co. (C.C.A.) 139 F. 639; Northern Pacific R.R. Co. v. Freeman, 174 U.S....