McCrory v. Chicago, M. & St. P. Ry. Co., 31 F. 531

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

31 F. 531 | U.S. Circuit Court for the District of Minnesota | 1887

Brewer, J.

There is but one question to be determined. The railroad company was clearly negligent, not merely in violating the ordi*532nance by an excessive ra.te of speed, but algo in approaching this crossing without signals. The only question is whether the deceased was guilty of contributory negligence. The rule laid down .by the supreme court of the United States is, briefly, that a man must look and listen when approaching a railroad crossing; and if, by looking or listening, he can ascertain the approach of a train, he is guilty of contributory negligence if he fails so to do. There is no dispute in this testimony as to the facts. At the time of the accident no witness saw the deceased. He was seen just before the accident, about 75 or 100 feet from the crossing, approaching the track. He could see in either direction. A freight train was approaching from the east, and its rumble and roar, and perhaps its whistle, attracted his attention; and coming from the west Avas a passenger train. There AA'as nothing to obstruct the vision towards the AA'est except the matter of smoke. If he had looked, there being no smoke in the way, he must have seen the train, and there cannot be a shadow of a question but that he would have been guilty of contributory negligence, thus approaching the track without noticing it. Does this question of the smoke change the case? We must remember that he was familiar with that track, because he had crossed it daily during the two months prior thereto. He must have known that there Avere Uvo tracks, and that a train was liable to come on each track; and if, Avhen approaching a track, he finds anything Avhich temporarily obstructs his vision, it is his duty to wait until the temporary obstruction is removed. He cannot say, “There is something temporarily obstructing my vision, but I will take it for granted that there is no danger,” and undertake to cross the track. If it is a mere temporary obstruction, something that Avould pass away in a moment, as in this case,—a breath of wind moAring the smoke,—he is guilty of contributory negligence if he pushes ahead with the knoAAdedge that there is a track upon which a train may be approaching at any time. If the obstruction had been of a permanent character, and he had been where a single step would put him upon'the ■ track, then there might be some difference; but here the obstruction, if there were an obstruction, that prevented him from noticing the train, he must have known was but temporary; if he had Avaited but a moment, he would have seen that the track AAras not clear. The probabilities are that he saAAr and heard the freight train; heard its rumble and its whistle; saw it approach, and did not think anything about another train passing at the same time. This is probably the truth. If he came to the track, and found the air full of smoke, and could not see, or, if able to see, he did not look, then, and in either case, he is guilty of contributory negligence. So, whether he could see and did not look, or could not have seen and did not AA'ait until that obstruction had passed aAvay, is immaterial,—one or the other must have been true, and in either event he is guilty of contributory negligence. The law lays it doAA'n clearly that a man must look and listen. And if, by looking and listening, he could ascertain the approach of a train, and fails to do so, he is guilty of contributory negligence, and cannot recover.

Verdict ordered for the defendant.