271 F. 165 | 8th Cir. | 1921
Elizabeth Marshall, administratrix of George L. Marshall, brought an action against the Director General of Railroads for $25,000 damages for his alleged negligence in the operation of an engine and three cars on a switch track at Superior, Neb., which, she alleged, caused the injury and death of Mr. Marshall. The Director General denied the negligence averred and alleged that Mr. Marshall’s injury and death were caused by his own negligence. The issues were tried by a jury. At the close of the evidence the court .directed a verdict for the Director General, hereafter called the de
Mr. Marshall was run over and mortally injured by an engine operated by the defendant on a switch track of the railroad company at Superior, Neb., about 1 o’clock in the afternoon on a bright sunshiny day in August, 1918. This switch track was a stub track serving a mill, so that it was necessary in operating it to back the engine in upon or out over it, and the engine was backing west, tender foremost, with three cars following it, when the accident happened. About 400 feet west of the mill, which was1 situated near 'the end of the stub track and on the south side of that track which extended west from the mill toward its junction with the main track, there stood a large brick building, about 195 feet long, with a cement platform about 4 feet high on the north side of it, which was owned by the Henningsen Produce Company. The switch track alongside this building lay on the land of the Produce Company, parallel with and about 46 inches north of the cement platform, but east of the northeast corner of this building this track curved to the south, so that further east it lay 4 feet south of the line on which- it lay opposite the building. North of this track, and approximately parallel with it, was the public road 30 feet wide. The land between this road and the Produce Company’s building was not inclosed, and customers of that company with their teams and others passed over it on their way to and from that building when engines or cars were not using this switch track but it was not a public highway.
Mr. Marshall was about 60 years of age, a resident of Superior, a man in full possession of all his faculties, long familiar with the situation of the track, the road, the cement platform, the switch track, and their uses, a carpenter by trade, who had previously worked in and about the Produce Company’s building. Mr. Johnson, a witness called by the plaintiff, was the secretary-treasurer and manager of the Produce Company, which was engaged in dealing in butter and eggs, storing produce, making butter, and handling poultry. On the day of the accident he engaged Mr. Marshall to do some carpenter work at the Produce Company’s building. A few minutes before 1 o’clock in the afternoon of that day he went to Mr. Marshall’s residence and took him in his automobile to a point on the public road north of the Produce Company’s building opposite the middle of and about 30 feet from it, where they alighted and walked south to the cement platform. They came to the place where they stepped out of the automobile upon the road from the east, and on their way they passed at a distance of about 5 feet the engine and the three cars, which were
Johnson testified that he thought Marshall heard him at that time tell him to look out for the engine, and that he had heard .what he said in an ordinary tone of voice in the conversation they were having before they arrived at the platform. When Mr. Johnson gave Mr. Marshall this first warning, the backing engine was about 350 feet east of Mr. Marshall. As soon as Johnson had given Mr. Marshall this warning, he jumped up onto the platform as he was accustomed to do; but Marshall, who was carrying some of his tools, failed to follow him,, and when Johnson had landed on the platform and straightened himself up he saw Mr. Marshall about 15 or 20 feet further east toward the coming engine, with his feet on the ground and his hands on the platform. Thereupon Johnson shouted at the top of his voice to get out of the road of that engine, which was then about 100 or 175 feet east of him. Marshall looked up at Johnson, but did nothing more. Then- Johnson immediately shouted his warning again. Marshall glanced over his shoulder, threw up his hands, and started north across the track; but he stumbled, and , the tender caught him before he had crossed the track. While there were a few trunks of trees and a few branches between Johnson and Marshall and the engine at times between the time when they left the automobile and the time tlje tender caught Mr. Marshall, the engine and train were readily visible to each of them all this time, and as they went from the automobile to the platform, and as Marshall went east between the first and second warning, ■his face must have been toward them. The engine moved west at a speed of about 6 miles per hour. On account of the curve in the track east of the Produce Building, the engineer, who was leaning out of the window of the cab looking west, could not see the place where Marshall was until the engine had passed the northeast corner of the Produce Building, and when he did so he was about 65 feet from Mr. Marshall.
‘‘If plainüff is guilty of negligence directly contributing to the injury, he cannot recover, even though defendant was negligent, unless the contributory negligence of plaintiff was slight, and the negligence of the defendant was gross in comparison therewith. If, in comparing the negligence of the parties, the contribuí ory negligence of the plaintiff is found to exceed in any degree that which under the circumstances amounts to slight negligence, or if the negligence of defendant fails in any degree short of gross negligence under the circumstances, then the coniribuiory negligence of plaintiff, however slight, will defeat a recovery.” Morrison v. Union Pac. Co., 177 N. W. 158; Sodomca v. Cudahy Packing Co., 101 Neb. 446, 163 N. w. 809.
Conceding that the defendant did not ring the bell or sound the whistle of his switch engine as it came along over the switch track, a fact left in doubt by the evidence, a stranger or licensee, such as Mr. Marshall was, could not walk from the public road, with his face towards the engine and cars on the switch track in plain sight 400 to S00 feet distant, across the switch track to the cement platform, then turn after a warning to look out for the engine, and go towards it 15 or 20 feet, without taking the care or exercising the diligence in the use of his eyes or cars to protect himself from the approaching train, without being guilty of much more than slight negligence in comparison with the failure of the defendant to ring the bell or sound the whistle of a switch engine moving on the switch track, and there is no escape from the conclusion that under the Nebraska statute and its interpretation by the Supreme Court of that state the contributory negligence of Mr. Marshall was fatal to this action.
The result is that there was no error in the court’s direction to the jury to find a verdict for the defendant, and the judgment below must be affirmed. It is so ordered.