147 F. 397 | 8th Cir. | 1906
after stating the facts as above, delivered the opinion of the court.
In the light of the foregoing facts let us examine the acts of negligence imputed by the petition to the railroad company: (1) In failing to ring the bell or to give other warning to people about the crossing of the approach of the car. There was not only an entire
These allegations will be considered together, as they involve the same principles of law. The trial court, from its charge to the jury, seems to have entertained the view of plaintiff’s counsel, that the failure of the defendant at the time of the accident to have a watchman stationed at the crossing, and to have a man with a lighted lantern “upon the forward end of the car,” might be regarded as negligence per se. This is a misconception not unusual both of the office of such precautions and the reason for such rule or requirements. Hence, its arbitrary application, despite the. facts of the particular case demonstrating its inapplicability. Whenever the reason for a rule does not apply to the particular instance it ceases to exist. If a city ordinance for instance requires the ringing of a bell or sounding of a whistle on the engine approaching a crossing where a person is injured, the omission to observe the ordinance in this respect is wholly immaterial, if as a matter of fact the party injured had notice, of the approach of the engine; for the reason that the only purpose of such warning is to give notice of the approach of the car. Denver City Tramway Company v. Norton (C. C. A.) 141 Fed. 600, 607, loc. cit. So in respect of the duty to keep a flagman at such crossing, the purpose of which is to give warning to persons attempting to effect a crossing of the approach of cars. If the person in fact is aware of the approach, or there, are other facts existing at the time and place which are equivalent to the presence of such watchman, liis absence is wholly immaterial. Likewise in respect of a requirement that a light should be maintained at such cross
The only end to be subserved by the presence of a person at the forward end of the car is that he might observe the approach of a person at the crossing, and, by giving warning, possibly avoid a collision. But under the plaintiff’s contention that the night was ■so dark that the deceased himself could not see the flat car, the switchman, if at the forward end thereof, would not have seen him; and, therefore, his presence or his absence under such conditions was quite immaterial. The presence of a lantern under such circumstances would alone have afforded the deceased any protection. If so,,it would have been because of seeing the light he might have been warned thereby of danger. There being a lantern in McGinn’s hand near the middle of the car, and other lights showing the presence of the car just as effectually as if McGinn had stood a few feet further forward, it met the whole requirement of any rule, express ■or implied, touching the due care of the law in this respect imposed upon the railroad company. Even if McGinn had been on the forward end of the car, under the deceased’s statement that he did not see the flat car because the headlight of the engine blinded him, it likewise would have eclipsed by its glare the figure of McGinn had he been on the forward end of the flat car.
In its charge to the jury the court told them, in effect, that it was ■ for them to determine from all the facts in evidence, whether the defendant was guilty of negligence in its failure to have some one there as flagman for the purpose of warning pedestrians that the train was approaching. This affords an apt illustration of that conservatism in charging’ juries of indulging in generalities which amount practically to mere abstractions, of little 'aid to the jury in discerning the application of the law to the particular facts of the case. The jury is thus left on the sea of conjecture to proceed without chart or compass to guide. At most this crossing was but little' used at the hour in question, and then mainly by railroad employes familiar with the situation and the probability at any time of switching cars over this crossing. Most certainly, unless the absence of such flagman in some degree contributed to the injury, the fact was not a factor in the case; and the court should have so said. Suppose there had been a flagman at the. crossing, what fact is there in evidence from which any jury should be allowed to infer that the life of Clarkson would have been saved? The place where such flagman would have been Eunda was about with his lantern alight, in plain view of Clarkson, if then approaching the crossing. To á person of his knowledge of the switching habitually conducted there, and of the fact that no flagman was kept at the place, notice was given that a switching movement at that crossing was in process of execution, as much so as if a flagman had told him in so many words.
The next charge in the petition, and the one upon which most stress is placed by the plaintiff below, is as follows: In pushing said
Notwithstanding some minor differences in the version given by the witnesses as to the statements made by the deceased immediately after the accident, they arc in practical accord that he admitted that he saw the headlight, and that lie did not know what he was doing or thinking about, as he did not see the flat car. And there is little ground for doubting that he also said it was his fault. Touching this matter the court, in its charge to the jury, said:
“If Clarkson did make that statement, that is not conclusive upon him, nor is it conclusive upon the plaintiff in this action, because undoubtedly Clarkson was suffering pain at the time, and great mental suffering, and you should take that into consideration in determining its weight. Even if he made it, it is not conclusive that the fa nit was his, because we all know that a person in that situation is not to be held strictly to all that he may say under those circumstances.”
This, it seems to us, was more than favorable to the plaintiff below. Its tendency was to minimize the effect of the admission.
The exclamations of persons in moments of sudden disaster arc impressive. They are unpremeditated and ought to be presumed free from pretense. They reflect the truth of nature, first impulse. We fail to discover any incoherence, or external evidence of unconsciousness, to justify the rejection of the statements of Clarkson made within a few seconds or a minute after the accident. Of course his admission that his misfortune was his own fault would not necessarily conclude him, as his deduction might be incorrect; yet it was, if made, his own conclusion drawn from facts especially
“Boys, it is all my fault. I Rave been railroading for a good many years. I saw that headlight, but I did not see the car. I thought I had time to get across, and I got caught before I got over. I did not notice the first car.”
The plaintiff below having thus brought into the case the statement of the deceased without objection, she made it an issue of fact, and her counsel relies upon it in part for maintaining the verdict.
Flaying by its charge, practically destroyed the effect of deceased’s statement beyond question the court should have granted the request of the defendant for a directed verdict. For eliminating the statement of the deceased, what have we in this record to support the verdict ? The case would stand thus: Clarkson was found injured under the defendant’s car; no one saw him approach, and no one witnessed the injury. While it is to be presumed from the nature of his injury that it was inflicted by the defendant’s car or cars, whether he was lying down on the track or whether he had stumbled and fallen between the rails in crossing, at best would be matter of conjecture. Would such a state of facts, without more, sustain a verdict for damages against the railroad company? In Cincinnati, etc., Railway Company v. South Fork R. Co. (C. C. A.) 139 Fed. 528, 1 L. R. A. (N. S.) 533, Judge Lurton. in a forceful opinion, maintains that the maxim of res ipsa loquitur does not so apply even to the relation of carrier and passenger, that a mere injury to a passenger in transit is sufficient without more to warrant a finding that the injury resulted from the negligence of the railroad company. Clarkson was neither a passenger nor an employé. No contractual relation existed between him and the defendant railroad company. The company owed him no duty other than a public one. When, therefore, he or his representative asks to hold the railroad company for damages resulting from the fault of the company proof must be offered to show how he g'ot under the car and how it was the fault of the railroad company.
The principal reliance to support the verdict is upon the case of Texas & Pac. Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186. While there are lines of parallelism between that and the case at bar, they soon diverge and draw apart. We only know what the facts of the Gentry Case were from statements found in the opinion of the court, to the effect that while there was conflict in if there was sufficient evidence to render it necessary to submit the case to the jury; that evidence tended to show the following state of
In any permissible view of the facts and the law of this case, this verdict cannot stand except upon the license of a mere conjecture, as needful to be restrained as a disguised confiscation. The court should have granted the request of the defendant for a directed verdict.
It results that the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to grant a new trial.