McCann v. Chicago, M. & St. P. Ry. Co.

105 F. 480 | 7th Cir. | 1901

Upon the foregoing statement of the facts, BUNN, District Judge, delivered the opinion of the court.

The facts are mainly conceded. The case rests upon the plaintiff’s testimony as given in the statement of facts. There is a material conflict in the testimony as to which coach struck the plaintiff; three witnesses on the part of the defendant testifying that he was not struck by a coach of the defendant’s train, but was struck by a coach of the Pan Handle train. But that is quite immaterial according to the view we have taken of the case. We think, upon the plaintiff’s own statement of his case, the direction of the court was right, and fully supported by the evidence. Indeed, we think the court might have made the grounds of its decision still broader, and held: First, that the negligence of the plaintiff was the proximate cause of the injury, and, second, that the testimony showed no negligence or want of proper foresight and caution on the part of the defendant company or any of its officers or employés. The situation and the running and operating of these trains at this crossing were well known to the plaintiff. From his own statement he knew all abouf them. He had taken the same Pan Handle train every day for 15 months. He knew the trains were expected to meet at that time and place, and that there was no safe standing room between the tracks. He went deliberately into a place of imminent danger, without so much as looking to the east or west to see if the trains were coming, and remained there until the trains came, knowing well that there was not safe standing room between the tracks. The evidence shows that he was warned by .other workmen to cross back over the tracks, but that he paid no attention to the warning. Knowing the situation as he did, it was negligence to cross over the tracks and remain between .them until the trains came. It was, no doubt, possible, after he saw the trains coming, by the exercise *of good judgment in an emergency, to have escaped the peril, either by standing still flatwise upon the 18 or 20 inches space that he had between the tracks, and making no effort to get hold of the handles upon the coaches of the Milwaukee train; or, what would perhaps have been better still, to have thrown himself flat on the ground lengthwise between the tracks and allowed the trains to pass over him. Still he might be excusable for not exercising the best judgment in such an emergency when the peril was full upon him. But he was not excusable for voluntarily putting himself in and remaining in a position of such imminent danger without any sufficient reason. And no doubt the jumping to catch hold of the handle of the car while under motion was itself a danger and a peril in the circumstances. He was not a passenger on the defendant’s road, and as a passenger that company owed him no duty. Indeed, he was not a passenger upon the Pan Handle road, though that question is not material here, hut was, while going upon its train to and from his work on the line of that road, its workman and employé. Elwald v. Railway Co., 70 Wis. 420, 30 N. W. 12, 591. He knew the speed of the defendant’s trains at that point, and that it did not stop at Leavitt street crossing. That company did not owe him the usual duty owing to a passenger upon its road. It was, no doubt, under obligation to do. all it could to prevent injury after its officers and employes in charge of the train were cognizant of the plaintiff’s peril. But there is no evidence that this was not done. The defendant had no station or stopping place at that point. The ordinance of the city allowed trains a speed of 20 miles an hour. There is no evidence tending to show that the defendant’s train was running at a higher rate of speed. On the contrary, the evidence shows the train to have been going at from 12 to 16 miles an hour.

There are several grounds of negligence alleged, but the one mainly relied upon was the speed of the defendant’s train. But there is no evidence of negligence in this respect, or in any other respect. Another ground of negligence alleged was the lack of train lights, but no case is made under this head; the evidence without conilict showing that the rear or east end of the backing train was furnished with a large bulls eye reflector 10 to 12 inches in diameter, throwing a continuous red light, and placed at the outer edge of the platform in the center of the vestibule. By it stood a white hand lamp, and on each side of the coach, at the end, hung a small red lamp or “marker.” All these lights were burning that evening, and were plainly seen 150 to 200 feet from the crossing by several witnesses, and also by the engineer and fireman of the Pan Handle train two blocks away from them. But the lights were of no use to the plaintiff, as he savs he did not look to the east nor to the west. If he had said he wqs 59 years old, and did not greatly care longer to live, his words would have corresponded fairly well with his actions in going into such a place of peril without so much as looking in any direction for danger, and remaining after he saw the peril was upon him. If he could not hear, he was under all the more obligation to use the senses he had. In any case it was his duty to have looked all ways for danger. Houston v. Railway Co., 95 U. S. 697, 24 L. Ed. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Railroad Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; Walker v. Kinnare, 22 C. C. A. 75, 76 Fed. 101; Blount v. Railway Co., 9 C. C. A. 526, 61 Fed. 375; Stowell v. Railroad Co., 39 C. C. A. 145, 98 Fed. 520; Neininger v. Cowan, 42 C. C. A. 20, 101 Fed. 787; Gilbert v. Railroad Co., 97 Fed. 747, 38 C. C. A. 408; Railroad Co. v. Peebles, 14 C. C. A. 555, 67 Fed. 591; Pyle v. Clark (C. C.) 75 Fed. 644. If precedents were needed upon so plain a proposition, all of the above cases-are authority in point for the action of the court below in directing a verdict in favor of the defendant on the ground of contributory negligence. Knowing the situation as the plaintiff did, it was negligence per se to stand between the tracks while the trains passed. Beach, Contrib. Neg. (3d Ed.) § 216; Moore v. Railroad Co., 108 Pa. St. 349; McGeehan v. Railroad Co., 149 Pa. St. 188, 24 Atl. 205; McClary v. Railroad Co. (C. C.) 46 Fed. 343; Bjork v. Railroad Co., 85 Ill. App. 269; Cunningham v. Railroad Co. (C. C.) 17 Fed. 886. As was said by the supreme court, speaking through Mr. Justice Miller, in Ellicott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068:

“But one explanation of his conduct is possible, and that is that he went .upon the track without looking to see whether any train was coming. Such •omission has been again and again, both as to travelers on the highway and employes on the road, affirmed to be negligence. The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track, or that there ' is no danger therefrom.”

, In the case at bar the plaintiff not only went upon the track without looking, but he remained there for 10 minutes waiting for trains that he expected and had every reason to believe would come, and this while he .could have remained with the other workmen on the other side of the tracks in perfect safety. It is not necessary to multiply -authority upon the question.

Upon the question of the negligence of the defendant company there was nothing upon which a verdict could have been based. Each ■and all .the grounds relied upon failed in the proof. The crossing was properly guarded, and the crossing gates down. The speed of the train was not excessive or unlawful. The train was properly lighted. The engine had an automatic bell ringer, which was always ringing when the engine was in motion, and was- ringing that night on the occasion in question, and the gateman’s bell was ringing constantly, the flagman upon the crossing calling out a verbal warning when the ■train was approaching and while it was 200 feet away, with the plaintiff standing only 10 feet from him. In addition to these thing's, .an air whistle-or “tail hose” whistle on the rear end of the backing train was sounded, and it was not the company’s fault that the plaintiff could.not hear. It is quite evident, however, from his own testimony that it would have made no difference if he had heard it, as his deliberate purpose was to get away from the crowd, and to board the train on the south side, from between the tracks. Indeed, it- is difficult to see what the defendant company could have done that was not done to prevent such an accident. The judgment of the circuit-court is affirmed. . . '