144 F. 959 | 8th Cir. | 1906
There was substantial evidence of the negligence of the railroad compan}" in respect of the speed of the cars and the absence of- signals, and the verdict of the jury in favor of the plaintiff precludes further inquiry into that matter. But the neglig-ence of the railroad company did not absolve the deceased from his duty to look' and listen before venturing upon the track, and the evidence conclusively shows that by his failure to perform that duty he was guilty of negligence contributing directly to his death.
The employes of the railroad company were engaged in pushing seven freight cars southward toward a much travelled street in Du-buque,. Iowa, crossing which were six railroad tracks operated as part' of the máin line and yards of the company. The engine was upon the north end of the string of cars and was moving backwards. There was a brakeman on the car- next to the engine but none -near the end of the cars nearest the crossing. No flagman was stationed at the crossing. The deceased was 23 years of age, intelligent, and in full possession of his faculties. He was and had been for more than a year in the service of Wells, Fargo & Co., as the driver of an express wagon. He was thoroughly familiar with the railroad crossing, was accustomed to drive over it several times each day, and knew of the frequent passage of trains and the' movement of cars in switching.. The horse attached to the wagon was tractable, gentle, and easily controlled. The accident occurred in the daytime. The deceased drove eastward upon the south side of the street and slowly approached the railroad tracks. At no time prior to the moment of collision was the horse moving at such speed as would have prevented the deceased from stopping him almost instantly. The hood of the wagon top projected about 12 inches beyond the driver’s seat, and the side curtains were down, thus preventing the deceased and the brakeman next to the engine from seeing each other so long as they maintained
This would appear to present a case of negligence upon one side and such contributory negligence upon the other as precludes a recovers. But the plaintiff was permitted to recover in the trial court upon the theory that the employes of the railroad company, having perceived that the deceased was about to drive upon the track, and was not at the time using his senses of sight and hearing to discover his danger, did not then exercise reasonable and ordinary care to prevent the accident. In other words, the court announced the rule of law sometimes called the “last chance” doctrine which has been developed from the case of Davies v. Mann, 10 Mees. & W. 546, and the jury found that the facts justified its application.
We need not discuss this rule and its proper limitations nor the cases in which it has been applied, for we are clearly of the opinion that in no admissible view is it applicable to the case at bar. The evidence before the jury did not justify a finding that the employés of' the railroad company perceived that the deceased was about to drive upon the track before the very moment he did so and then it was too late to avert a collision. One of the plaintiff’s witnesses said that the horse was walking so slowly he thought the deceased was going-to stop, and the fireman and brakeman testified that the expressmen were in the habit of driving up close to the track and then stopping until the cars passed by. It is true that they did not see the deceased because of the drawn curtains of the wagon top; but even so, the deceased without being observed by them could himself have seen more than two hundred feet of the string of approaching cars, and that would have been sufficient for his purpose. Nor was the deceased required to look and listen at any particular point in his journey toward the tracks. The duty imposed upon him by law would have been fully discharged had he looked and listened at any point sufficient for the purpose before actually venturing into danger. The men upon the train were not .obliged under the circumstances to anticipate his negligence. They could very well have assumed either that he knew of the approach of the cars and intended to stop at the
The judgment of the Circuit Court is reversed, and the cause remanded, with direction to grant a new trial.