173 F. 605 | 8th Cir. | 1909
John McNamara was run over and killed by an engine of the railway company at a railroad crossing of a street in the city of Cheyenne, Wyo. His administratrix sued the company and recovered judgment. There was a defense of contributory negligence. At the close of the evidence the company moved for a directed verdict, and the denial thereof by the trial court presents the only question we find it necessary to consider.
There were two theories as to the place where deceased got upon the track and what he was doing there; but, as the verdict of the jury was against the company, we shall adopt that of the plaintiff, and also assume there was negligence in failing to give proper signals of the approach of the engine. Two side tracks, and a main line between them, running in a northerly and southerly direction, crossed the city street substantially at. right angles. They were a part of the yards of the company. About four minutes before the accident the engine went northward on the west side track to a point 75 or 100 feet north of the street, and after coupling to some cars backed with them towards the crossing. The deceased approached the crossing from the northwest on a cross-lot path, and, though no one saw him step upon the track, it is quite clear that when he did so he was instantly struck by the tender of the engine and run over. No Witness testified whether he looked and listened just before stepping on the track, so the presumption of care which arises from the natural instinct of self-preservation is invoked in support of the judgment. But those who saw him as he neared the immediate vicinity of the crossing said he was paying no attention to the engine and cars, and there was nothing whatever to obstruct his view northward along'the track for at least a block. The engine and cars were approaching slowly, five or six miles an hour, and were in plain view. It was between 1 and 2 o'clock of a January afternoon, and though the snow upon the ground may have required careful attention in walking, and there was some wind, every witness whose view was not obstructed by fixed physical objects, and who looked, saw the engine and cars at a greater distance than deceased was from them. One witness who saw them plainly was more than 200 feet away. Those who observed the deceased as he neared the crossing noticed no effort on his part to detect the danger. The conclusion is unavoidable that he did not perform his duty before going on the track; for, had he looked, he could not have failed to see, and he was complete master of his movements.
There is no merit in the argument that the engine was a road engine, as distinguished from the type specially designed for switching’ service, that deceased saw it headed north and moving in that direction, that he had reason to believe it would continue in its course, and that he was therefore lulled into a sense of safety. All the inferences that
The judgment is reversed, and the cause remanded for a new trial.