176 F. 237 | 8th Cir. | 1910
On October 1, 1905, in the railroad yards at St. Paul and on a single track of the Northern Pacific Railway Company about 4-50 feet long, which both parties were entitled to use, and over which the passenger train of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company going north to Minneapolis had the right of way, there was a collision between that train and a stock train of the Chicago Great Western Railway Company which was coming south.toward South St. Paul. Thereupon the companies entered into a written agreement that the question of liability for the collision and for all losses and expenses growing out of it should be settled by an action in the court below which should be tried by Judge Charles F. Amidon without a jury. The action was brought, it was tried by Judge Amidon, who made a special finding of facts the -legal effect of which was that the Great Western Company alone was guilty of negligence which caused the collision, that the “Soo” Compan)'- was guilty of no negligence which contributed to cause it, and that the former company was liable for the losses and expenses which resulted from it. The judgment against the Great Western Company founded upon this finding is questioned by this writ of error.
The first specification of error is that the court permitted the witness McGuire to answer the following question:
“Q. What was the fact as to how the Chicago Great Western passenger trains were handled out of the Union Depot for the period of your service prior to this accident, as compared with the way the ‘Soo’ trains were handled this morning?
“(That is objected to as immaterial.)
“A. The Great Western the same as the ‘Soo’ line:”
The question whether or not the “Soo” Company was guilty of negligence which directly contributed to the injury was an important issue in this case. There are cases in which an act or omission is in itself so clearly neglig-ent that the fact that other persons in the same or like circumstances have been guilty of a similar act or omission is insufficient to modify its character or its effect. Dawson v. Chicago, Rock Island & Pacific Ry. Co., 52 C. C. A. 286, 288, 114 Fed. 870, 872; Gilbert v. Burlington, etc., Ry. Co., 128 Fed. 529, 534, 63 C. C. A. 27, 32. The act or omission of the “Soo” Company in this case, however, did not appear at the time this evidence was challenged to be of that character, and, where the nature'of the act or omission is doubtful, the best test of actionable negligence, where available, is the degree of care which persons of ordinary intelligence and prudence commonly exercise under the same or like circumstances. If the care exercised in such a case rises to or above that standard, there is no such negligence, if it falls below it there i^. The legal presumption was that the servants of the Great Western Company who had been operating its passenger trains upon the tracks leading out of St. Paul which were used by the “Soo” Company on the day of the accident were men of ordinary intelligence and prudence, and hence the fact that it had been their uniform practice to handle their trains under like circumstances in the same way that the “Soo” Company operated this train on that occasion was both competent and material evidence that it conducted it with reasonable care. Lake v. Shenango Furnace Company, 160 Fed. 887, 895, 88 C. C. A. 69, 77.
The second complaint is that the court permitted McGuire to testify that those operating the Great Western passenger trains and other passenger trains over this single Northern Pacific track had not been and were not in the habit of stopping for the crossing of the Burlington track which lay just north of Third street as they ran up the grade unless there was something extraordinary, unless they were stopped. There was a statute of the state of Minnesota which required every company operating a railroad to cause its trains to come to a full stop not less than 10 nor more than 60 rods before they reached any railroad junction or crossing at grade (Rev. Laws Minn. 1905, § 2033), and counsel contend that the admission of this evidence was erroneous" because .the violation of the statute was negligence per se, so that evidence of reasonable care in its violation was immaterial, and because testimony of the habit or custom of operating trains over these tracks was generally inadmissible.
But this statute was inapplicable to the case here presented and imposed no duty to the Great Western Company or to the operators of its stock train upon the “Soo” Company, or upon the crew upon its passenger train. The connection of the double track of the Great Northern Company with the north end of its single track was no “junction” within the meaning of this law. The junction to which this statute refers and to which it is limited is a junction of two or more railroads owned by different proprietors, or a junction of two or more
It is neither decided nor admitted that this statute imposes any duty upon a railroad company to stop its engines or trains at every crossing of another railroad in the yards of railroad companies where switchmen or flagmen are stationed to notify enginemen of danger and of safety in making such crossings and where trains are handled by the signals of such switchmen or flagmen. But for the purposes of this case let it be conceded that this statute applied to the Burlington crossing, and that it was negligence per se for the “Soo” Company to cross the track of that company without stopping. “Negligence” is a breach of a duty. Those only to whom that duty is due and who have sustained injuries of the character its discharge was designed to prevent can maintain actions upon it. This statute imposed no duty to stop at this crossing in favor of all the world upon the “Soo” Company, nor in favor of any party for whose protection it was not enacted. Now it was passed to protect those riding upon railroad trains from injuries resulting from collisions with crossing trains. To parties thus injured, and to those in danger of injury so caused, and to them alone, the “Soo” Company owed the duty to stop before crossing the Burlington track, But it did not owe this duty to the Great Western Company, or to its operators on the stock train, or to any of the thousands of persons who were riding upon the line of the Northern Pacific Railroad between St. Paul and the Pacific coast, but were not crossing nor intending to cross this Burlington railroad. It is said that it owed this duty to its own passengers. Let the proposition be conceded. It owed this duty to its passengers to prevent injuries to them by a collision with crossing trains. It did not owe any such duty to them to protect them from collisions with trains which were not crossing the Northern Pacific Railroad, and the injury sustained in this case did not arise from such a crossing train. The incidental fact that the “Soo” train reached the north end of the Northern Pacific single track a few seconds earlier than it would have arrived if it had stopped for the .Burlington crossing is too remote and inconsequential to make its failure to stop there a cause directly contributing to the actual collision with a train coming from the north. Every collision of a through train with persons, trains, and animals, on its way from St. Paul to the Pacific Coast over the connected rails of the Northern Pacific Company certainly could not be attributed lawfully to the fact that it failed to stop at some crossing in St. Paul on the ground that, if it had done so, it would not have arrived at the points of collision at the times when they occurred. And the failure of the “Soo” train to stop at the Burlington crossing in this case cannot be more reasonably held to be one of the direct causes of this accident. The statute invoked therefore was irrelevant to the issues in this case, it did not render evidence of the rea
Was the evidence of the habit or custom of the operators of similar Great Western trains over the same tracks under like circumstances competent testimony upon the issue of the reasonable care of the operators of the “Soo” train? The presumption was., as has already been said, that these operators were of ordinary intelligence and prudence. The best test of reasonable care in a given case is evidence of the degree of care which such persons commonly exercise under similar circumstances where such evidence is available. Hence, upon the question of negligence or none, evidence of the ordinary practice and of the uniform custom, if any, of such persons in the performance under similar circumstances of acts like those which are alleged to have been done negligently, is generally competent evidence, because it presents to the jury a correct standard for the determination of the issue. Lake v. Shenango Furnace Company, 160 Fed. 887, 895, 88 C. C. A. 69, 77; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 416, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Union Pacific Ry. Co. v. Daniels, 152 U. S. 684, 691, 14 Sup. Ct. 756, 38 L. Ed. 597; Washington, etc., Ry. Co. v. McDade, 135 U. S. 554, 569, 10 Sup. Ct. 1044, 34 L. Ed. 235; Texas & Pacific R. Co. v. Barrett, 166 U. S. 617, 619, 620, 17 Sup. Ct. 707, 41 L. Ed. 1136; Choctaw, etc., R. Co. v. McDade, 191 U. S. 64, 67, 24 Sup. Ct. 24, 48 L. Ed. 96; Charnock v. Texas & Pacific R. Co., 194 U. S. 432, 437, 24 Sup. Ct. 671, 48 L. Ed. 1057; Chicago Great Western Railway Co. v. Egan, 86 C. C. A. 230, 159 Fed. 40. There was no error in the admission of the testimony relative to the habit, the practice, or the custom of the Great Western operators while taking like trains under similar circumstances over the tracks here used by the “Soo” Company.
A Single question remains. It is assigned as error that the court below denied the motion of the defendant at the close of the trial to dismiss the action on the ground that the evidence conclusively proved that the plaintiff was guilty of negligence which directly contributed to cause the collision and the losses. The question which this specification presents is not the issue of fact whether or not the finding of the court below that the “Soo” Company was not thus guilty was sustained by a fair preponderance of the evidence. It is this question of law: Was there conclusive proof that the “Soo” Company was guilty of causal negligence, and no substantial evidence that it was not so guilty, so that no issue of fact regarding this matter remained for determination? When an action at law has been tried by the court without a jury, its findings may not be reversed for any error of fact. Rev. St. U. S. §§ 649, 700, 1011 (U. S. Comp. St, 1901, pp. 525, 570, 715); Hall v. Houghton & Upp Mercantile Co., 60 Fed. 350, 8 C. C. A. 661. A finding of a court without a jury in an action at law has the same effect and is reviewable to the same extent and by the same course of procedure as the verdict of a jury, with the single exception that when the finding is special the question whether or not the facts found sustain the judgment is open to determination by the appellate court. United States Fidelity & G. Co. v. Board of Com’rs, 145 Fed. 144, 150, 151, 76 C. C. A. 114, and cases there cited; Hall v. Western Union Tele
The evidence which conditions the issue thus .presented consists of the testimony of more than a dozen witnesses, and no good purpose would be served by a recital of it here. There was, it is true, testimony which, if it stood alone, would have sustained a finding oí a failure of the fireman upon the “Soo” engine to exercise reasonable care to look out for signals and obstructions as he passed up the single track of the Northern Pacific Company. But there was also substantial evidence of these facts: There was a single track of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company which crossed the double tracks of the Union Depot Company south of Third street, and there was an Omaha stopboard by the side of this double track about 700 feet southwest of the Third street viaduct at the point where the double tracks leading from the Union Depot began to curve from east to north. From that point to a point very near the passageway under the Third street viaduct the view of the engineer of the “Soo” train to the north was completely cut off by the embankment which supported Third street. There was a point just before his engine went under the viaduct where he could have seen to the north through that passageway; but as the engine passed under the bridge the smoke from it circled down and obscured his vision,' and thereafter his view of the approaching Great Western train and of other objects to the northwest was obstructed by the boiler and the front end of the engine so that his opportunity to see that train and the situation in front of him north of Third street was practically open to him for an instant only, just before he passed beneath the viaduct. Tt is clear from the evidence here that no court could hold as a matter of law that the engineer was conclusively proved to have been guilty of causal negligence. The fireman could have seen the Great Western train as he approached it trom a point near Third street and could have also seen the stop signals which the evidence shows Maloney, the switchman at the north end of the single track, was giving, if he had been looking out of his side of the engine. But it was the custom to run these trains over this single track upon the signals of the stationary switchman. McGuire had examined and seen that the switches at both ends of the single track were lined up for the passage of this train onto the double track of the Northern Pacific Company, and his signal to come on which these enginemen had received was authoritative notice to them that these tracks were ready for them and free from obstruction so that their train could pass safely over the single track. The fireman had received this signal at the Omaha stopboard 700 feet from the Third street bridge, and had given it to his engineer who drove his engine around the curve and up the hill. It was necessary and customary for the fireman on an engine drawing a heavy passenger train like that of the “Soo” Company around this curve and up this grade to get down from his seat in the engine, and feed, tend, and promote his fire immediately after the train started from the Omaha stopboard, so that steam sufficient might be produced to enable the engine to take the train up the hill. While he was discharging this necessary duty, he could not look out in front of the engine. As soon as the train started around the
It is only when the evidence upon the issue of negligence or of contributor)'- negligence is so clear and conclusive that a finding but one way can be' sustained upon it, that the question in issue becomes one of law and the duty devolves upon the court to effectuate that conclusion without weighing the evidence upon the issue. This case was tried by the judge whom the parties selected and whom they agreed should try it before the action was commenced. He saw and heard the witnesses and decided, upon consideration' of the weight of all the evidence, that the enginemen of the “Soo” Company were not guilty of any negligence which directly contributed to the accident, and a review of the printed testimony has failed to convince that there was no substantial evidence to sustain his finding, or-that it was his duty to disregard the question of fact upon a consideration of the sufficiency of the evidence and to direct a judgment for the defendant on the ground that there was no substantial conflict in the evidence upon this issue. There was, therefore, no error in the denial of the motion of the defendant to that effect.
Finally, counsel for the Great Western Company contend that the court below erred in including in its judgment against that company upon the facts found the amounts paid out on account of injuries to the passengers of the “Soo” Company. They support this contention by the argument that the “Soo” Company was guilty of some- causal negligence, that if it was guilty of any negligence the passengers could have recovered their damages from it, and that after it had paid those damages it could not have recovered them of the Great Western Company, because the two companies were joint tort-feasors. But the court below’ found that the negligence of the Great Western Company was the sole proximate cause of the collision and of the injuries and damages which resulted from it, and that the ‘-'Soo” Company was not guilty of any negligence whatever which directly contributed to cause them. If those findings were right, and our review of the record has convinced that there was no error in the trial which can disturb them, the “Soo” Company was not liable to its passengers for the injuries and damages they sustained by this collision, and the contention of counsel here is without foundation.
The judgment below must be affirmed, and it is so ordered.