Rollins v. Chicago, M. & St. P. Ry. Co., 139 F. 639

139 F. 639 | 8th Cir. | 1905

CARRAND, District Judge,

after stating the case as above, delivered the opinion of the court.

We have had some trouble in settling the bill of exceptions in this case. The record shows that to the proposed bill of exceptions of the plaintiff in error the defendant in error submitted what amounts to 16 pages of the printed record as amendments thereto. Then the plaintiff in error submitted some. At the end of these documents appears the usual allowance thereof by the trial judge as a bill of exceptions. At no place in the bill can a statement be taken as true, without searching the whole record for the purpose of ascertaining whether or not said statement has not been changed or added to by amendment. This labor ought not to be imposed upon this court. We are of the opinion that, when a trial judge has decided what shall appear in the bill of exceptions, counsel should be required to prepare for signature a new draft of the bill as amended, and trust that this may be done in the future. In the absence of evidence as to the acts of the deceased immediately prior to the collision, plaintiff in error is entitled to the presumption that deceased used due care to avoid injury. Texas, etc., Railway v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Northern Pacific Railway v. Spike, 121 Fed. 44, 57 C. C. A. 384. But, as was said by this court in Tomlinson v. C., M. & St. P. Railway, 134 Fed. 233, 67 C. C. A. 218, this presumption cannot stand against positive-and uncontradicted proof. Northern Pacific Railroad v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; Baltimore, etc., Railroad v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 48 L. Ed. 262. We are satisfied that a fair consideration of the evidence, with all legitimate inferences that may be drawn therefrom in favor of the plaintiff in error, still leaves the case in a position where all reasonable men must draw the conclusion that the deceased was guilty of negligence which contributed to his death. We base our opinion upon the fact that the undisputed evidence shows that, if the deceased had used his senses of hearing and seeing as the law required him to do, he could have seen and heard the train.in time to avoid injury. The presumption that the deceased used due care is destroyed by the force of physical facts shown by undisputed evidence, and the inevitable inference must be drawn therefrom that deceased either did not look or listen, or, having looked and listened, he endeavored h> cross in front of the train. He was therefore, as matter of law, guilty of contributory negligence. Garlich v. Railway, 131 Fed. 837, 67 C. C. A. 237; Chicago, etc., Railway v. Andrews, 130 Red. 65, 64 C. C. A. 399 ; Chicago, etc., Railway v. Rossow, 117 Red. 491, 54 C. C. A. 313 ; Chicago, etc., Railway v. Pounds, 82 Fed. 217, 27 C. C. A. 112; Pyle v. Clark, 79 Fed. 744, 25 C. C. A. 190.

It is urged by plaintiff in error that there is no evidence in the record that deceased knew that he was approaching a railroad track. We think that the evidence discloses such a state of facts as to warrant the court in fairly presuming that the deceased must have known that the highway on which he was traveling crossed a railway track at or near the place in question. The highway upon which he was traveling was a main traveled road between the home of deceased and Charles City. It ran through an old settled country with towns and villages scattered throughout the locality. Deceased was 26 years old, unmarried, and lived at his father’s home, and had lived there, so far as it can be gathered from the evidence, for some time, and deceased and his team were well known by people living in the vicinity of the accident. When warned by Mr. Adams, as deceased started on his journey home, to look out for the cars, his reply indicated that he was aware that there was a necessity of looking out for the railroad trains. The wing fences at the Warner Crossing were recently whitewashed. The wing fence extending from the railroad track southwest along the highway was some 90 feet long. Ordinary care required deceased to ° heed these facts. Steinhofel v. C., M. & St. P. Railway Co. (Wis.) 65 N. W. 852.

There were exceptions taken in the court below to several rulings of the court on the admission of evidence; but, as said rulings did not affect the result, they need not be considered.

The judgment below is affirmed.