281 F. 664 | 8th Cir. | 1922
This writ of error challenges the direction of the jury by the court below to return a verdict for the defendant railway company at the close of the evidence in the trial of an action by Mr. Miller, the plaintiff, for damages from a personal injury which he alleged' was caused by the negligence of an engineer of the defendant in operating an engine, which struck and broke his leg. The defendant denied the negligence, and alleged fhat the plaintiff was guilty of negligence which directly contributed to his injury. The only question in this court, therefore, is whether or not the evidence was such that the trial court, in the exercise of its judicial discretion under the established rules of law on this subject, could have rightly sustained a verdict for the plaintiff, if such a verdict had been rendered.
“Q. You didn’t look to see whether the engine would go down No. 1 or go down the lead? A. No, sir; I didn’t, because there was no doubt about it in my mind.
“Q. Yet you looked down at the track; did you look around? A. I did.
“Q. From the time you started until the engine struck you, did you ever look back at the engine?- A. Not after I gave tile signal to come ahead.”
Thus the facts appear that he knew and was so sure that the engine was coming down track 1, when he went upon and walked upon that track, that he would not look to see whether it was coming or not, and the unavoidable inference is that, if the engineer had rung the bell, as customary, that ringing would not have changed his mind and led him to look back to see where the engine was coming, but would merely have confirmed his sure knowledge that it was coming down track 1 behind him, a fact which there was no doubt about in his mind. ^ Thus the facts appear from the evidence that the absence of the ringing of the bell could not have been either the proximate or a contributory cause of the plaintiff’s injury; hence it would not have supported a verdict for the plaintiff.
[ 5 ] But counsel insist that the plaintiff was entitled to recover under the last clear chance rule. That rule is not that, if the defendant or its engineer saw or could by the exercise of ordinary care have seen the plaintiff and realized his imminent danger in time to stop the engine before it struck him, the defendant is liable for the ensuing injury. That doctrine or exception to general rules is limited to cases in which
The plaintiff testified that it was a common practice of switchmen after they threw a switch to walk ahead of the engine until it caught up with them, and then step on the footboard and ride along, but that the engine in this case had no footboard and that when he was going in the same direction as the engine he would walk along in front of it until it caught up with him, and then ordinarily catch the side step located at the side of the cab of the engine as it passed by. He also testified that the engine stopped 35 or 40 feet from the place where it struck him, and that he picked himself up by the ladder along the side of the engine and started to get up, and then found his leg was broken. Conceding that the engineer saw the plaintiff as he walked along in front of the engine, he also knew that it was the common practice of switchmen so to do and the ordinary practice of the plaintiff so to walk, and as the engine caught up with him and passed to step to one side catch the side step on the side of the cab and ride. The engine was moving so slowly that it stopped in 35 or 40 feet farther when it stiuck the plaintiff, and there was nothing in the situation before it struck him, in the position of the plaintiff, in the speed of tire engine or in the other circumstances to lead a man of ordinary prudence to think or to believe that the plaintiff was in any peril, that he would not follow his ordinary practice and step off the track as the engine ryas about to catch up with him.
The natural inference from the former practice of the plaintiff, from the situation and the circumstances, was that he intended to step to the
The accident which resulted in the plaintiff’s injury occurred in the province of Alberta, Canada, and the evidence of the law of that country conditioning the liability of the defendant for the damages resulting from the injury appears in the record and has been examined. While some of the rules of law of Canada regarding this liability differ in some respects from those which prevail in this country and have been stated, the difference is not sufficient to sustain a verdict on the evidence in this case in favor of the plaintiff under the laws and rules enforced in Alberta, Canada, and for that reason a discussion of them is omitted.
The judgment below must be and it is affirmed.