Wabash Ry. Co. v. Huelsmann

• Decision Date: 22 May 1923
• Docket Number: 6167.
• Citation: 290 F. 165
• Parties: WABASH RY. CO. v. HUELSMANN.
• Court: U.S. Court of Appeals — Eighth Circuit

290 F. 165

WABASH RY. CO. v. HUELSMANN.

No. 6167.

United States Court of Appeals, Eighth Circuit.

May 22, 1923

Rehearing Denied August 3, 1923.

Homer Hall, of St. Louis, Mo. (L. H. Strasser and N. S. Brown, both of St. Louis, Mo., on the brief), for plaintiff in error.

Robert J. Keefe, of St. Louis, Mo. (William L. Igoe and Vance J Higgs, both of St. Louis, Mo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and BOOTH and JOHNSON, District Judges.

JOHNSON District Judge.

It is the general rule in this jurisdiction that a person who drives his team, automobile, or motor truck upon a railroad track at a street or highway crossing in front of an approaching train, which he could have seen had he looked, or could have heard had he listened, is in law guilty of contributory negligence, and cannot recover damages from the railroad company. Pyle v. Clark, 79 F. 744, 25 C.C.A. 190; Chicago Great Western Ry. Co. v. Smith, 141 F. 930, 73 C.C.A. 164; Union Pac. R. Co. v Rosewater, 157 F. 168, 84 C.C.A. 616, 15 L.R.A. (N.S.) 803, 13 Ann.Cas. 851; Davis v. Chicago, R.I. & P. Ry Co., 159 F. 10, 88 C.C.A. 488, 16 L.R.A. (N.S.) 424; Chicago, M. & St. P. Ry. Co. v. Bennett, 181 F. 799 104 C.C.A. 309; Northern Pac. Ry. Co. v. Tripp, 220 F. 286, 136 C.C.A. 302; Chicago Great Western R. Co. v. Biwer (C.C.A.) 266 F. 965; Gordon Fireproof Warehouse & Van Co. v. Hines (C.C.A.) 272 F. 604; Atchison, T. & S.F. Ry. Co. v. McNulty (C.C.A.) 285 F. 97; Bradley, Administratrix, v. Missouri Pacific R.R. Co. (C.C.A.) 288 F. 484.

There may be exceptions to this general rule. The circumstances of a particular case might be so unusual that it should be left to the jury to determine whether the person injured had been guilty of contributory negligence. The circumstances of this case, however, are not unusual. On the contrary, this is the usual case of inattention.

Angelica street, in St. Louis, runs east and west. The tracks of the defendant railroad company cross the street at right angles from north to south. The defendant maintained gates at the crossing and employed a watchman to operate them from 7 o'clock in the morning until 5 in the afternoon. Plaintiff was injured at 5:45 on the afternoon of the 26th day of July, 1920. There was a shed on the north side of Angelica street 27 feet and 3 inches west of the west rail of the track. The track begins to curve towards the west at a point 375 feet north of the street. On the day of the accident a freight car was standing at this point on a spur switch west of the main track. Seventy-five feet south of the freight car, upon the same side of the track, was a pile of cross-ties 8 or 10 feet high. It is clear from the testimony that this pile of cross-ties could not have obstructed plaintiff's view of the train, and it will not be mentioned again. On the day of the accident, plaintiff was driving his motor truck east on Angelica street towards the crossing. He testified that, immediately after passing the shed, he looked north and saw the freight car, but did not see the train; that he approached the track at a speed of 5 or 6 miles an hour; that when within 5 or 6 feet of the track he looked south along the side of the watchman's shanty, and, seeing no train, shifted gears and drove his truck on the track; that just as the front wheels of the truck were on the left rail he heard the puffing of the engine, and, looking up, saw the train 20 or 30 feet away, approaching from the north. The truck was demolished and plaintiff was seriously injured.

The...