127 F. 307 | 7th Cir. | 1903
Lead Opinion
(after stating the facts as above). -If the facts, or the inferences to be drawn from them, with resp'e'ct to'‘con-
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
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
(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
The judgment is affirmed.