59 F. 237 | 8th Cir. | 1893
This is a writ of error to reverse a judgment which was recovered by the defendant in error-in a suit brought by him against the Chicago & Northwestern Railway Company. The facts on which the recovery was predicated are not in dispute, and they are, substantially, as follows: The defendant company maintains and operates a double track railroad through the city of Cedar Rapids, Iowa, and for some distance within the limits of that city its tracks are laid in and along Fourth street, and across First avenue, at the point where Fourth street crosses that avenue. The passenger depot of the defendant company is located at the southwest corner of First avenue and Fourth street. On the morning of April 4, 1890,' the plaintiff, with his two sons, was driving down First avenue, towards Fourth street, in a one-horse delivery wagon. As they approached the railroad crossing on. Fourth street, they found the street partially blockaded by one of the defendant company’s west-bound passenger trains, which had recently arrived from the east. First avenue, at that point, is about 80 feet wide, from curb to curb; but so much of the street was taken up by-the standing passenger train that it only left a roadway about 14 feet in width between the rear end of the train and the east sidewalk, for the passage of vehicles. After the plaintiff reached the crossing, he halted on the north side of the train for a few moments, whereupon the defendant company’s flagman, who was standing on the track at the rear end of the train, said: “Hurry up. Come on. You are all light.” The gates across First avenue were at the time elevated, and several vehicles that were going in the same direction as the plaintiff had already crossed the tracks in safety. The engine of the passenger train was detached therefrom, and had moved to an adjoining track to take up a mail car which was to be coupled to the train; and a switch engine was standing on the same track as the passenger train, at the rear, end thereof, and about 40 or 50 feet distant from the rear car. Under these circumstances, the plaintiff attempted to cross the tracks by the narrow roadway at the rear end of the train. While making such attempt, his horse, for some reason, suddenly shiéd to the right, bringing the wagon in contact with the buffers of the rear car. By reason of the sudden shock, plaintiff was thrown
It is contended by the defendant company that as the plaintiff had an unobstructed view of the entire situation at the time he attempted to cross the tracks, and as the situation was not altered before the accident happened by any act of the defendant company, he should be held to have voluntarily assumed whatever risk was incurred in making the crossing, and should also be adjudged guilty of contributory negligence. These propositions were submitted to the trial court in the form of instructions, and its refusal to so charge constitutes one of the errors, complained of. In view of all of the circumstances to which we have adverted, we find ourselves unable to bold, as a matter of law, that the plaintiff was guilty of contributory negligence. The passageway at the rear end of the train was wide enough to permit a team to be driven through, with ordinary safety. Other vehicles had passed through before the plaintiff attempted to cross the tracks. The plaintiff testified that the horse which he was driving was an old and gentle horse, that had been driven about the city for seven or eight years by himself for the purpose of delivering groceries, and was not in the habit of jumping or shying when in proximity to cars or engines. Moreover, the plaintiff was invited by the defendant’s flagman to make the crossing, which was an assurance that the train would not be immediately moved, and that the crossing could be made in safety. Under these circumstances, it was clearly the duty of the trial court to submit the question of contributory negligence to the determina-: tion of the jury. In oilier words, on the state of facts disclosed by the record, the plaintiff’s attempt to cross the tracks on the occá-, sion in question cannot he said to have been attended by such obvious dangers to life or limb ihat all reasonable men would declare, him to have been guilty of culpable negligence. Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Hoye v. Railway Co., 62 Wis. 672, 23 N. W. 14; Railway Co. v. Killips, 88 Pa. St. 405; Railway Co. v. Hutchinson, 120 Ill. 587, 11 N. E. 855; Directors, etc., v. Wanless, L. R. 7 H. L. 12; Wheelock v. Railway Co., 105 Mass. 203; Eddy v. Powell, 1 C. C. A. 451, 49 Fed. 814.
With reference to the further contention of counsel, — that the plaintiff voluntarily assumed the risk of crossing the tracks, and should be precluded from recovering on that ground, — it seems sufficient to say that the rule invoked has no application to the present case. As the jury found that the plaintiff exercised ordinary care and circumspection in attempting to drive around the rear end of the train, the railway company is not released from liability for an injury occasioned by a negligent obstruction of the street, which rendered plaintiff’s act necessary, merely because the plaintiff had full knowledge of the situation when he undertook to make the crossing. The doctrine of “voluntary assumption of a risk,” as distinguished from contributory negligence, is generally applied in cases arising between employer and employe, where an employe, without any valid excuse for so doing, voluntarily undertakes to work with a tool or an appliance which is known to be
It is next insisted that the trial court erred in refusing to charge, as it was requested to do, that there was no eA’idence that the railway company “unnecessarily blocked the crossing, nor for an unreasonable or unlawful'length of time.” In support of this contention, it is claimed that the court should haAre declared, as a matter of law, that under the circumstances, disclosed by the testimony
With respect to the suggestion that the injuries complained of were immediately occasioned by the sudden shying of the horse which the plaintiff was driving, it is only necessary to say that the shying of the horse cannot be regarded as the sole, proximate cause of the injury. The obstruction which had been placed in the highway directly contributed to the accident, and the jury was justified in so finding. Andrews v. Railway Co., 77 Iowa, 672, 42 N. W. 513; Skjeggerud v. Railway Co., 38 Minn. 56, 35 N. W. 572; Corey v. Railroad Co., 32 Minn. 457, 21 N. W. 479.
The result is that the judgment of the circuit court must be affirmed, with costs; and it is so ordered.