141 F. 930 | 8th Cir. | 1905
This was an action under the state statute to recover damages for the death of R. H. Armstrong, who was struck by a locomotive and instantly killed while walking across the tracks of the railway company in its yards at Oelwein, Iowa. The negligence charged against the company was that the locomotive was being driven at a rate of speed prohibited by an ordinance of the town, and that the bell was not rung nor the whistle blown, as required by the ordinance. There may be some question whether the ordinance was applicable to the place of the injury; but it will be assumed that it was, and also that there was sufficient evidence of 'the right of the deceased to cross the defendant’s yards at that place and of the negligence of the company to make the case in these respects one for the jury. One of the defenses set up in the answer was contributory negligence, and the only question necessary to be considered is whether or not this defense was so conclusively proven that the court should have granted the defendant’s prayer for a directed verdict in its favor. The evidence, if viewed in the light most favorable to the plaintiff, established these facts:
The company’s yards contained several parallel tracks used for various railroad purposes, including the making up and movement of trains and the switching and storage of engines and cars. On one of these
These facts permit of no other conclusion than that the deceased went upon the coal track without taking the precautions necessary to determine whether he could do so in safety. This was negligence. The place was one of great danger, and the track was itself a warning. As was said in Elliott v. Chicago, etc., Ry. Co., 150 U. S. 245, 248, 14 Sup. Ct. 85, 86, 37 L. Ed. 1068:
“It can never be assumed that cars are not approaching on a track, or that there is no danger therefrom.”
The -law requires of one going into so dangerous a place the vigilant exercise of his faculties of sight and hearing at such short distance therefrom as will be effectual for his protection, and if this duty is neglected, and injury results, there can be no recovery, although the injury would not have occurred but for the negligence of others. Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403; Railroad Co. v. Houston, 95 U. S: 697, 24 L. Ed. 542; Schofield v. Chicago, etc., Ry. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific R. R. Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; Chicago, etc., Ry. Co. v. Andrews, 64 C. C. A. 399, 130 Fed. 65; Shatto v. Erie R. R. Co., 59 C. C. A. 1, 121 Fed. 678; Ames v. Waterloo, etc., Co., 120 Iowa, 640, 95 N. W. 161.
But it is urged that the deceased had a right to expect that the company, in propelling a locomotive or train along any of its tracks, would conform to the requirements of the town ordinance, and that he was justified in conducting himself accordingly. The case of Texas Pacific Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132, is relied upon as sustaining this contention, but it does not go so far. On the contrary, it is in entire accord with the prior and subsequent decisions before cited, which hold that the duties of railroads and travelers at intersecting highways are mutual and reciprocal, and no higher degree of care is required of. the one than of the other; that one cannot
The judgment is reversed,, with a direction to grant a new trial.