144 F. 47 | 9th Cir. | 1906
after stating the case as above, delivered the opinion of the court.
Error is assigned to the refusal of the trial court to instruct the
‘‘Knowing the usage which prevails, they may reasonably be required to anticipate the probable presence oí persons on or miar the track at such places, and to be on the lookout when tlieir attention is not directed to the performance of their other duties.”
Assuming that the evidence which went to the jury proves that the railroad company was negligent in not discovering the presence of the defendant in error on its track, what shall he said of the evidence of the contributory negligence of the defendant in error? A general license to the public to walk upon a railroad track does not mean that the railroad company is to be the insurer of the safety of all persons who avail themselves of that permission. While the license adds to the responsibilities of the railroad company, and imposes upon it a greater burden of care, it does not affect the duty that rests upon the licensee to take all due precautions to avoid injury to himself. If the negligence of the defendant in error was one of the proximate causes of the injury which he sustained, if it directly contributed to the unfortunate result, he cannot recover, even though the negligence of the plaintiff in error contributed to it; and the rule is the same whether the injured person be a trespasser on the railroad track or a licensee. Kansas City, Ft. S. & M. R. Co. v. Cook, 66 Fed. 115, 13 C. C. A. 364, 371, 28 L. R. A. 181; Felton v. Aubrey, 74 Fed. 350, 360, 20 C. C. A. 436; Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361; Louisville & N. Ry. Co. v. McClish, 115 Fed 268, 273, 53 C. C. A. 60; King v. Illinois Central R. R. Co., 114 Fed. 855, 862, 52 C. C. A. 489; Missouri Pacific Railroad Co. v. Moselev, 57 Fed. 921, 6 C. C. A. 641, 645.
In the case last cited, the court held that a license to walk upon the track did not relieve the licensee from the duty of exercising reasonable care to protect himself from obvious dangers from the engines and cars, and said:
“It certainly gives him no higher right than that of tile traveler upon the public highway at a railway crossing. * * * ft was negligent for him, to walk upon tlie track 300 feet without looking behind him.”
“Such a licensee is himself under the highest obligation to look out for his awn safety, and he cannot recover if his own want of due care proximately contributes to his misfortune.”
In Louisville & N. Ry. Co. v. McClish, it was said:
“Even in the case of a licensee, there is, under such circumstances, the highest duty to exercise the utmost degree of vigilance in looking out for approaching engines of cars. * * * The track is the property of the railroad company, which it has the legal right to use at any and- all times.”
The rule is well established that it is the duty of .a traveler to stop and look and listen before crossing or walking along a railroad track. He has no right to assume at any time of the day or night that trains will not be run over the track. Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Chicago & St. P. Ry. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific Railroad v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014.
Said the court, in Elliott v. Chicago, M. & St. P. Ry. Co., 150 U. S. 248, 14 Sup. Ct. 85, 37 L. Ed. 1068:
“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.”
The defendant in error was a miner of the age of 34 years, and was in the full possession of his senses. According to his own testimony, he walked upon the railroad track a distance of more than half a mile without once looking back or stopping to listen for an approaching, train. In so doing, it must be held that he was guilty of gross negligence, which, irrespective of negligence in the failure of the engineer, to discover him on the track, is sufficient to bar his right of recovery. It was no excuse for his failure to take such precautions that the wind was blowing in his face, or that the noise of a waterfall may have deadened the sound of an approaching train. Those circumstances only rendered the use of his senses the more imperative. It was his duty continually to- exercise vigilance.
Said the court, in Kansas City, Ft. S. & M. R. Co. v. Cook, 66 Fed. 115, 123, 13 C. C. A. 364, 371:
“The noises about him made it all the more important that he should not rely upon his sense of hearing alone.”
And in Garlich v. Northern Pacific Railroad Co., 131 Fed. 839, 67 C. C. A. 237, the court said:
“No reliance on the exercise of care by persons in control of the movement of trains or engines will excuse any lack of the exercise of such care by persons going upon such tracks. If the use of these senses is interfered with by obstructions or by noises, ordinary reasonable care calls for proportionately increased vigilance.”
On the authority of Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551-558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408-429, 12 Sup. Ct. 679, 36 L. Ed. 485, aiid Bogan v. Carolina Central Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418, the defendant in error invokes
“If by neglect of this duty he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute!, or be running at the. time at a speed exceeding the legal rate.”
It cannot be contended that in the Ives Case the Supreme Court intended to lay down the broad rule that no contributory negligence of the party injured will defeat his right to recover, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of that negligence. To so hold would he to destroy the whole doctrine of contributory negligence. As applied to the present case, it would mean that the plaintiff in error was hound to know that the defendant in error was upon its track, and that he would not step aside in time to avoid the train. Such is not the doctrine of cases such as Northern Pacific Railroad v. Freeman and the other decisions which we have
Where the facts, or the fair inference to be drawn from the facts, with respect to contributory negligence are doubtful, the case is one for the jury; but where, from any proper view of the undisputed or established facts, the conclusion follows as a matter of law that the plaintiff cannot recover, it is the duty of the trial court to direct a verdict. Schofield v. Chicago & St. P. Ry. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Delaware, etc., Railroad v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Warner v. B. & O. R. R., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491; Northern Pacific Railroad v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; District of Columbia v. Moulton, 182 U. S. 576, 21 Sup. Ct. 840, 45 L. Ed. 1237.
We think that the Circuit Court erred in submitting to the jury the question of the contributory negligence of the defendant in error.
The judgment is reversed, and the cause remande'd, with instructions to enter judgment 'for the plaintiff in error.