67 F. 277 | 2d Cir. | 1895
This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury. The action was brought by an administrator to recover damages for the death of Jacob F. Blessing, who, it was alleged, was killed by the negligence of the defendant. The issues upon the trial were whether the defendant was guilty of negligence, and whether the deceased was guilty of contributory negligence.
It appeared in evidence that the deceased was struck and fatally injured by the locomotive of a freight train while crossing the defendant’s railroad at its intersection with a public highway. He had approached along the highway from the south, on foot; had walked across the first, or southerly, track of the railroad, and was upon the second, or northerly, track when he was struck. The accident happened in the' early evening, shortly after dusk. According to some of the testimony, the freight train, which was composed of 12 or 15 cars, was moving at a speed of 15 or 20 miles an hour, and had given no warning of its approach by the ringing of a bell, by a whistle, or otherwise. The deceased was familiar with the crossing, was a man of mature years, and was in possession of all his faculties, but was somewhat hard of hearing. He was alone. There was nothing upon the railroad to intercept his view after he came within a step or two of the southerly track. That track
“When I first saw him (the deceased) he was just in the act of going on. the track. I told the engineer just as soon as I laid my eyes on him. In fact, I only just saw him for a moment.”
The engineer testified that the deceased was about 25 or 30 feet away when he first saw him. According to the testimony for the defendant, the train was running about 12 miles an hour, and the headlight of the locomotive was burning, and shone upon the track 100 to 200 feet in front of the train.
At the close of the evidence the trial judge was requested on behalf of the defendant to instruct the jury to render a verdict in its favor, because the evidence did not establish negligence on its part, and also because the evidence established contributory negligence upon the part of the deceased. This request was denied by the trial judge, and error has been assigned of the ruling.
It has not been argued before us that the evidence did not justify submitting the question of the defendant’s negligence to the jury,
If the trial judge had granted the motion, which was made directly after the rendition of the verdict, to set aside the verdict as contrary to the evidence, we should not have regarded it as an unwise exercise of discretion; but he did not do so, and if there was any evidence, however unsatisfactory it may have been, to support the conclusion that the deceased was not guilty of contributory negligence,-we cannot rule that his refusal to direct a verdict for the defendant was error. This court has no power to review the decision of the court below in refusing to grant a new trial, based upon the ground that the verdict was contrary to evidence. Steamship Co. v. Anderson, 1 U. S. App. 176, 1 C. C. A. 529, 50 Fed. 462. It is only when the evidence given at the trial, with all the inferences that the jury can justly draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict if returned must be set aside, that the court is justified in directing a verdict. If upon any construction which the jury were authorized to put upon the evidence, or by any inferences they were authorized to draw from it, the conclusion that the deceased was not guilty of negligence can be justified, the defendant was not entitled to the instruction requested. Railroad Co. v. Stout, 17 Wall. 657. It is undoubtedly true that the railroad is itself a warning, and that it can never be assumed by a person about to cross one that cars are not approaching, or that danger is not to be apprehended; and we recognize to the fullest extent the doctrine that a person who is about to cross a railroad track is bound to listen and look in order to avoid danger, and if he fails to do so, or if doing so, and seeing the danger, he persists in the attempt, he is guilty of negligence which will defeat any recovery if he is injured. But, applying these rules to the facts of the case in hand, we are unable to accede to the conclusion urged upon us. We cannot ignore the consideration that one who is about to cross a railroad has the greatest incentive to exercise ordinary prudence, and is not to be presumed to be destitute of the ordinary instincts of self-preservation. Because men are sometimes reckless, we cannot assume that they are generally so. There is no evidence to indicate that the deceased was intoxicated, and none which is indisputable to show that he did not look and listen as he approached the track. Two other persons, having practically the same opportunities as he did for observation and discovery of danger, according to the .testimony, used ordinary diligence and failed to discover it. If the jury believed these witnesses, as we must assume they did, they were justified in inferring that there was some unexplained condition or circumstance in the situation which prevented the train from being seen or heard; and however improbable or incredible that testimony may seem to have been, especially in view of the photographs introduced in evidence, it was exclusively for the jury to credit or reject it. If the jury believed that these witnesses could not see or hear the train, although they sought to do so, they were justified
Error has also been assigned of an instruction given to the jury on behalf of the plaintiff which was as follows:
“If the engineer or fireman of the defendant company could have discovered the plaintiff’s intestate on the track in time to have avoided injuring him, and if the jury find that under the circumstances of this case the engineer or his fireman on the train should have so discovered the plaintiff’s intestate in time to avoid injuring him, but did not, the defendant company was guilty of negligence, and the plaintiff should have a verdict, provided ho was not guilty of contributory negligence.”
This instruction was excepted to on behalf of the defendant. It was given pursuant to a request on the part of the plaintiff. We think it was erroneous, and properly excepted to.
To instruct a jury upon assumed facts to which no evidence applies is error. Such instructions tend to mislead them, by withdrawing their attention from the proper points involved in the issue. “Juries are sufficiently prone to indulge in conjectures, without having possible facts not in evidence suggested for their consideration.” Railroad Co. v. Houston, 95 U. S. 697, 703. The instruction given could not in any respect have enlightened the jury in reaching a just conclusion. On the contrary, it tended to divert their minds from the real issues in the case. The facts were either, as contended for by the plaintiff!, that a pedestrian crossing the track could not see or hear the train, or be seen by those in charge of it, until it was close upon him; or, as contended for by the defendant, that it was visible to a person looking for it for several hundred feet beyond the crossing, and the deceased was actually seen 50 or 60 feet away. In the one case the train could not possibly have been stopped in time to avoid striking the de ceased; in the other, those in charge of it had the right to assume that he had noticed it, and would not step in front of it, until he actually attempted to do so, when also it was too late to stop it. There was not a scintilla of evidence to contradict the witnesses for the defendant in the statement that the train was stopped as soon as possible after the deceased was discovered, apparently intending to cross the track, by the fireman. By asking for this instruction,