Wheelock v. Clay

• Decision Date: 05 June 1926
• Docket Number: No. 7111.,7111.
• Citation: 13 F.2d 972
• Parties: WHEELOCK et al. v. CLAY.
• Court: U.S. Court of Appeals — Eighth Circuit

13 F.2d 972 (1926)

WHEELOCK et al. v. CLAY.

No. 7111.

Circuit Court of Appeals, Eighth Circuit.

June 5, 1926.

Charles M. Miller, of Kansas City, Mo., for plaintiffs in error.

Robert A. May, of Louisiana, Mo. (Rendlen & White, of Hannibal, Mo., Frank J. Duvall, of Clarksville, Mo., and May & May, of Louisiana, Mo., on the brief), for defendant in error.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Defendant in error, plaintiff below, sued to recover damages for the death of her husband, alleged to have been caused on the 8th of August, 1923, by the negligence of the defendants, receivers of the railroad company. The case was brought originally in the state court of Pike county, Mo., but was duly removed on the ground of diverse citizenship. At the close of all the evidence, defendants moved for a directed verdict. The motion was denied. Plaintiff recovered a judgment.

The sole question raised by the assignments of error is whether the court erred in denying the motion for a directed verdict. There was evidence tending to establish the following facts:

The accident happened at the Fritz Crossing, near Louisiana, Pike county, Mo. The railroad at this point ran approximately east and west; the highway, north and south. There were three tracks, parallel to each other, crossing the highway. The northerly of the three was the main track, the next southerly was the passing track, and south of that was the storage track. On the day of the accident the passing track was occupied, west of the highway, by a string of hopper cars. Cars were also standing on the storage track. These cars extended into the highway to a point about 7 or 8 feet distant from the traveled part thereof. The train which caused the accident was going east. It consisted of an engine, tender, and four cars, and was about 350 feet in length. As it approached the crossing, and before the brakes were applied, it was running about 40 miles per hour. Signals for the crossing were given. Mr. Clay was driving a pair of horses attached to an empty gravel wagon, going northerly toward the railroad crossing; the horses were walking at a speed estimated to have been 200 feet per minute. As he approached the tracks, his view toward the west was obstructed by the cars on the storage track and by the hopper cars on the passing track. A boy was sitting upon the hopper car nearest the highway. He saw the train approaching, and heard the signals, and tried to warn Mr. Clay. No attention was paid to his warning. The engineer of the train saw the horses when they emerged from behind the hopper cars. He applied the emergency brakes, but a collision occurred, and Mr. Clay was killed. The court instructed the jury that Mr. Clay was guilty of contributory negligence as a matter of law, but submitted the case to the jury on the theory of the "last clear chance doctrine." The main question presented to this court is whether the evidence was such as to warrant its submission to the jury.

The "last clear chance doctrine" presupposes negligence on the part of the defendant, and contributory negligence on the part of plaintiff (A., T. & S. F. Ry. Co. v. Taylor C. C. A. 8, 196 F. 878, 116 C. C. A. 440), and is an exception to the general rule making contributory negligence a defense (Denver City Tramway Co. v. Cobb C. C. A. 8 164 F. 41, 90 C. C. A. 459). There are limitations, however, to the application of the doctrine. In the case last cited, this court said:

"First. The exception does not apply where there is no negligence of the defendant supervening subsequently to that of the plaintiff, as where his negligence is continuous and operative down to the moment of the injury. St. Louis & San Francisco Ry. Co. v. Schumacher, 152 U. S. 77, 81, 14 S. Ct. 479, 38 L. Ed. 361; Illinois Central R. Co. v. Ackerman, 76 C. C. A. 13, 144 F. 959; Missouri Pacific Ry. Co. v. Moseley, 6 C. C. A. 641, 57 F. 921; Gilbert v. Erie R. Co., 38 C. C. A. 408, 97 F. 747. Second. The exception does not apply where the plaintiff's negligence or position of danger is not discovered by the defendant in time to avoid the injury. Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 309, 28 S. Ct. 63, 52 L. Ed. 219; Illinois Central R. Co. v. Ackerman, supra; Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 451, 74 N. W. 166, 70 Am. St. Rep. 341; Alger, Smith & Co. v. Duluth, etc., Co., 93 Minn. 314, 101 N. W. 298; Bennichsen v. Market St. Ry. Co., 149 Cal. 18, 84 P. 420; Cullen v. Baltimore & P. R. Co., 8 App. D. C. 69; Rider v. Syracuse Rapid Transit Co., 171 N. Y. 139, 63 N. E. 836, 58 L. R. A. 125; Chicago, R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 P. 286; Denver & R. G. R. Co. v. Spencer, 25 Colo. 9, 52 P. 211; Cooley on Torts (3d Ed.) 1442-1445; 3 Elliott on Railroads (2d Ed.) § 1175."

See Little Rock Ry. Co. v. Billings (C. C. A. 8), 187 F. 960, 110 C. C. A. 80; Iowa Central Ry. Co. v. Walker (C. C. A. 8) 203 F. 685, 121 C. C. A. 579; Allnutt v. Mo. Pac. R. Co., 8 F.(2d) 604 (C. C. A. 8).

The doctrine is limited in this court to cases in which the defendant actually discovers the person injured and his peril in time to avoid the injury, and does not include cases where by the exercise of ordinary care defendant might have discovered the person injured in peril in time to avoid the injury. Marshall v. Hines, 271 F. 165 (C. C. A. 8); Miller v. Canadian Nor. Ry. Co., 281 F. 664 (C. C. A. 8).

In the instant case counsel for plaintiff contends that the following facts, additional to those above stated, were disclosed by the testimony: That Mr. Clay in the wagon had reached the north rail of the main track when the engine hit the wagon; that Mr. Clay was driving at a rate of 200 feet per minute, which would be 2.27 miles per hour; that, if Mr. Clay had had time to go 3 feet more, the accident would not have happened. Assuming these to be the facts, and assuming the truth of the testimony of plaintiff's witness who saw the accident that Mr. Clay paid no attention to the signals of the engineer, nor to the shouts of warning of the witness, until he reached a point about on the north rail of the north track, when he heard either the train or the shout, and got up and started to jump, it is apparent that the negligence of Mr. Clay continued down to the time of the accident. Had he looked, he could have seen the train as soon as he emerged from behind the hopper cars. He could then have urged his horses, which were going only 2.27 miles per hour, and thus in all probability have gained the 3 feet necessary to his safety; or he could have dismounted from his wagon before he got upon the railroad track. He made no effort to do either. His negligence was continuous and operative down to the time of the accident. Assuming that defendants were negligent, the case is clearly one of concurrent negligence, and the doctrine of "last clear chance" does not apply. St. Louis, etc., Ry. Co. v. Schumacher, 152 U. S. 77, 81, 14 S. Ct. 479, 38 L. Ed. 361; Illinois Central R. Co. v. Ackerman (C. C. A. 8) 144 F. 959, 962, 76 C. C. A. 13.

We are also of the opinion that the "last clear chance doctrine" does not apply, because there is no substantial evidence in the record that the engineer actually saw Mr. Clay in a position of peril in time to avoid the accident. The engineer was called as a witness by plaintiff. He testified as follows: That he had...