Lead Opinion

JENKINS, Circuit Judge

(after stating the facts as above). -If the facts, or the inferences to be drawn from them, with resp'e'ct to'‘con-*309tributary negligence, be doubtful, the case is one for the jury. But if from the facts disclosed the conclusion follows as a matter of law that there can be no recovery in any proper view of the facts, it -is the duty of the trial court to direct a verdict. Schofield v. Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Railway Company v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Railway Company v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Gardner v. Michigan Central Railroad Company, 150 U. S. 349, 361, 14 Sup. Ct. 140, 37 L. Ed. 1107; Warner v. Baltimore & Ohio Railway Company, 168 U. S. 339, 348, 18 Sup. Ct. 68, 42 L. Ed. 491; District of Columbia v. Moulton, 182 U. S. 576, 579, 21 Sup. Ct. 840, 45 L. Ed. 1237.

The facts in the case at bar are without contention, and were disclosed by the evidence of the plaintiff. It was the duty of the deceased to go upon the crossing to see if a train was approaching from either direction, and to signal the mqtorman if and when the way was clear for the crossing of the street car. But the performance of this duty did not absolve him from the duty of care with respect to his own safety. He was there to look for danger. That was his duty, not only with respect to the service in which he was engaged, but with respect to himself in the performance of that duty. These duties were concurrent. After the gates were lowered* th street car could not cross until after the passage of the freight train. The deceased had then no duty to perform with respect to the street car until the train had passed and”.the gates had been raised. Until that should occur, duty to himself, if not to the railway company, required that lie should stand in a place of safety. There were ten feet in width of unobstructed space between the south rail of the south track and the gates, where he could have stood in absolute safety and in full view of the situation. Instead, he took his position between the rails of the south track with his back or side to the west, from which direction alone danger upon that track was to be apprehended, and, without looking to the west, watched the coming and passing of the west bound train upon the north track. This is abundantly proven by the concurrent testimony for the plaintiff. Those speaking to the question, and who' were watching him as he stood there, saw him look but in the one direction. Such conduct can be characterized only as reckless. Without necessity he deliberately placed himself in a situation of known danger. In the open space he would have been immune from danger, and with equal facilities for seeing in both directions. He had no right to stand upon the track. Taking the risk, the consequences should not be imposed upon another. Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific Railroad Company v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014.

It is urged that, because the defendant was in fault for noncom•'pliánce with statutory regulations, contributor}'’ negligence of the party injured is unavailing as a defense, and this is said to be stated with absoluteness i-ri Deserant v. Cerillos Coal Railroad Company, 178 U. S. 409, 20 Sup. Ct. 967, 44 L. Ed. 1127. - It was there ruled that the *310master’s liability to furnish a safe working place for his servant is not absolved by the concurrent negligence of a fellow servant. The charge of the trial court there under consideration contained the clause (paragraph 13, p. 417, 178 U. S., page 971, 20 Sup. Ct., 44 L. Ed. 1127) that if the servant knew of the failure of his employer to perform his statutory duty, and still remained in service in the dangerous place, he assumed the risk. This charge was not even excepted to or suggested as erroneous. The case gives no color to the contention of counsel. The contrary principle is sustained by the Supreme Court in the cases above referred to. In Railroad Company v. Houston, supra, the court, referring to failure to sound the whistle or ring the bell, says that such failure did not relieve, from the necessity of taking ordinary precaution for safety; that negligence in these particulars is no excuse for want of ordinary care. The law furnishes no support for the contention of counsel.

It is also said that the contributory negligence of the deceased should not prevent a recovery if the locomotive engineer, in the exercise of ordinary care, might have avoided the consequence of the deceased’s negligence; and this under,the modification of the rule as held by the Supreme Court in Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railway Company v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. There are no facts disclosed in this record calling for the application of the modification of the rule. It does not appear that the presence of the deceased upon the track was observed by the locomotive engineer, or that after seeing him, and after knowledge that he was unobservant of his danger, there was time to avoid the catastrophe.' To bring the case within the modification of the rule it is incumbent upon the plaintiff to make a showing calling for its application.

Dissenting Opinion

GROSSCUP, Circuit Judge

(dissenting). I cannot cdnsent, that as a matter of law, Dunworth was, under the circumstances stated, guilty of contributory negligence.

Dunworth left his car and walked alone to the tracks. There was no proof that in stepping upon the tracks, he did not look both west and east. The presumption of law, he being dead, is that he did; for the law presumes diligence on his part, both for the protection of himself and of the passengers in his care. Once on the south tracks, he stood with his face north. There is no proof that in such posture he did not look, at intervals, both east and west; and the presumption, again in favor of, diligence, is that he did. From the mere fact that he was struck by the engine, the presumption is not overcome — no witness having seen the engine until it was within seventy-five feet of Dunworth — for, though the track was straight, and Dunworth was standing between the rails, the engine could not, under the circumstances I shall now state, have been either seen or. heard until it came within two or three hundred feet of him, or, at the rate traveled, within one half minute of the time he was struck.

The night was dark. True, snow lay on the ground, and there was an arc light nearly overhead; but to one standing on the tracks, a *311dark engine coming down a dark track is not visualized by outlying snow, or by an arc light overhead. r There is no warrant, therefore, for holding that he could have seen had he looked, at least longer ahead than thirty seconds. About this there is no doubt, for the speed of the train was from eight to ten miles an hour, at which rate three hundred feet would be traveled in about one-half minute; and the noise of the passing freight train doubtless so smothered the noise of the coming engine as to make warning through the ears improbable. The real question then is this: Was his standing on the track, and his failure while there, to look westward oftener than each thirty seconds, contributory negligence, as a matter oí law? Suppose he had gone only to the edge of the track, and, observing the precaution for his own safety required by the majority opinion, had looked west; seeing nothing, he would, of course, haye beckoned his car to cross; suppose that, still looking, nothing was seen until the car reached the track, when the lightless engine loomed out of the dark, thirty seconds away, and the car was overtaken before it could clear the tracks — Would the doctrine of contributory negligence, under such circumstances, avail the railway company against either the passengers or the injured conductor? But why should it be contributory negligence in one case and not in the other ? Why should the conductor be held to greater care for his own safety than for the safety of his passengers? The truth is that the majority opinion, while adhering to the academic injunction that men near railway tracks must look and listen, loses sight of the fact that the common run of men, discharging the duty under which he acted, would have done just as he did. In my judgment the rule invoked is not applicable to the case we are deciding.

The judgment is affirmed.