203 F. 933 | 8th Cir. | 1913
Plaintiff, a traveling salesman, brought suit against the defendant railway company to recover damages laid .at $26,300 for personal injuries sustained while walking through defendant’s yards at Dickinson, N. D.., for the purpose of boarding one of defendant’s trains for South Heart, in the same state. This train, described as a local freight, carried a single coach for the accommodation of passengers. It was made up and customarily stood- before departure in the yard of the company at a point between three and-four blocks west of the passenger station. It was reached by passing, for a portion of the way at least, along and across the tracks of this yard used by defendant for the general purposes of its business, and- thus described by plaintiff in his petition:
“A regular railway yard consisting of main tracks and many side and passing tracks, all of which side tracks extend and are used in an easterly and westerly direction, and are used for switching cars, making up trains, passing of trains, loading of passengers and freight trains, and for general railway purposes.”
Plaintiff lived at Dickinson, was entirely familiar with the surroundings, and it had been his custom to take this train, under the same
“Q. When you say you both looked back just before you crossed over, you meant by that you looked back at the same point; you spoke of before, about opposite the icehouse? A. That was the last time we looked back. Wo loked back to see if the rest of the hoys were coming.
“Q. As you walked along down that morning, after you had looked to the east, did you listen? A. Did wo listen?
“Q. Yes? A. No; we didn’t; listen.
“Q. How? A. Did wo listen?
“Q. Ies? A. No; we never thought of listening — no occasion for listening.
“Q. Did you hear anything approaching you at all? A. No.”
The yard at this point presented the usual maze of lead tracks and switches. By one of the latter the engine was transferred from the track upon which it was seen approaching, by the plaintiff and his companion, to that beside which the two men were walking. It was a bright, clear morning, and there were no buildings or other obstacles obstructing the view along the tracks in either direction. The clearance between the tracks at the point where plaintiff was walking was the usual one in yards of this nature, giving ample room for pedestrians. Costello was slightly in advance of plaintiff, but farther from the track, and was untouched by the same engine as it passed. At the close of plaintiff’s evidence the- court, upon motion, directed a verdict in favor of the defendant, upon the ground that plaintiff’s own negligence not only contributed to, but was the primary and efficient cause of his injury, and judgmeut was entered accordingly. This is the only error assigned for review.
Where contributory negligence is established by the, uncontroverted facts of the case, it is thé duty of the court to instruct the jury that plaintiff cannot recover. As frequently held, and generally undersood, every railroad track is a constant warning of danger from the powerful machines that traverse it; and such danger is intensified when plaintiff was, as he knew, in the midst of a network of tracks and 'switches, where there was continuous movement backward and forward, and where switching from one track to another was constantly to be expected. Plaintiff had already seen this same engine moving-in his direction but 200 or 300 feet behind; he knew, or should have known, that the various tracks were connected by intercommunicating switches, and the duty of observation and caution, in the midst of such surrounding, was a continuing one. That he was a prospective passenger, and therefore rightfully upon the company’s property, can make no difference. The rule applies to trespasser and licensee alike. Neither is absolved from the exercise of care to avoid known impending- danger commensurate with the imminence of that danger. Here the plaintiff, although aware of the approach, of an engine in a yard used for switching in the breaking and making of trains, deliberately turned his back upon it, and invited the injury which he speedily suffered. He was not between the rails of the track, but upon a path beside the track, which afforded' ample space within which to walk without injury from passing engines and cars. His companion and others were passed by this same engine without injury. The plaintiff heedlessly walked so close to the rails that he came within reach of the usual overhang or crossbeam. Plere, again, his negligence is apparent, and was the primary and efficient cause of the injury.
The judgment must be affirmed; and it is so ordered.