62 F. 552 | 5th Cir. | 1894
This is a suit by tbe widow of James Nolan, on her own behalf and for their four minor children, to recover damages for tbe killing of her husband. James Nolan was a locomotive engineer, about 40 years of age, and bad worked for tbe Texas & Pacific Railway Company about 20 years. For 7 or 8 years just before and up to January, 1893, be-bad run, as a locomotive engineer for that company, in and out of Longview junction, tbe point in Texas where tbe International & Great Northern Railway Company’s road intersects that of tbe Texas & Pacific. His family, tbe defendants in error, resided in Longview junction. Their home was near the passenger depot at that place. This depot is a union depot. At this point tbe course of the main track
“It being manifest from tbe evidence in this case that the death of James Nolan was the result of his own contributory negligence, the plaintiff is not entitled to recover, and you will return a verdict for the defendant.” “You are charged, gentlemen of the jury, that the plaintiff, in her iietition, alleges, as the acts of precaution taken by James Nolan before stepping upon the track, that, ‘before stepping upon the track upon which he was struck, he did carefully look and listen and watch to see if any cars were approaching;’ and you are charged that under the facts of this case the language used in the petition, above quoted, states the measure of care required of him before stepping upon the track; and if you believe from the facts that he did not ‘carefully look and listen and watch to see if any cars were approaching’ before he stepped upon the track, and that such acts of care on his part would have apprised him of the danger in time to have averted it, the plaintiff cannot recover.”
—Which, the court refused to give.
A part of the court’s general charge was as follows;
“The general rule of law applicable to a case of this character is that it is the duty of the defendant to provide safe approaches to and from its depot By the term ‘safe’ is not meant that the ground at the crossing itself is in perfect condition, but it has a broader meaning. It means that it must be safe, not only in construction, — reasonably safe, — but also that it' will be kept in that condition, and free from foreign objects passing over it while parties traveling are departing and arriving in a reasonable time and in a reasonable manner, and as they are nece'ssarily expected to arrive and depart. As to what is diligence, — proper diligence, — in any case of that character, depends largely upon the surroundings. At a depot where it is remote from population, and where there are few arrivals or departures, less diligence would be necessary than in a place where arrivals are frequent and large. As to whether a flagman and light would be necessary would depend upon the same conditions. In a large and crowded city, where parties are passing frequently, and may be reasonably expected to pass frequently, it requires a higher degree of diligence thin in a place that is seldom used. As applied to this particular case, if the evidence shows that the place where the train stopped, and where Nolan left the train, was one frequently used, — often used, — then in that state of case the general rule would be that it would be the duty of the defendant to use that degree of care commen-*555 sarate with the probable danger. It might be necessary to have a flagman. It might be necessary to have a light. It might be necessary that the train should not be turned loose, without a brakoman to control its motion, when it was kicked up a siding. As to all these matters, I regard them as questions tor the jury, and not for the court. You are instructed it would be the duty of the company, if you believe from the evidence that the passenger traffic was such there that trains were frequently passing out and in, and that was a natural approach to or from the depot, and one provided by the company, that before the company could turn loose a car, without means of stopping it, it would be its duty to use all reasonable precautions to give notice of the approach of such a train, to prevent injury to any party that might be passing on this crossing; and if the company should fail to use such diligence, and a party was injured in consequence, the company would be liable, unless the right of action was defeated by contributory negligence, which I will now speak of.”
The court gave special charges requested by the plaintiff, as follow's:
‘•No. 2. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover, if Nolan himself is shown to have been guilty of contributory negligence which had something to do in causing the aecidoul, yet the contributory negligence on Nolan’s part would not exonerate the defendant railroad company, and prevent the plaintiff from recovering, if it bo shown that the railroad company might, by the exercise of reasonably care and prudence, have avoided the consequences of Nolan’s negligence. No. 3. Tpon the issue of contributory negligence the burden of proof is on the railroad company, defendant, to show that plaintiff was negligent, and that his negligence contributed to the injury.”
To tbe refusing- of each of said special charges asked by the defendant, and to the giving of said portions of the general charge, and the giving of special charges 2 and 3 asked by the plaintiff, the defendant below duly excepted. There was a verdict and judgment for plaintiff. The defendant sued out this writ of error, and assigns as error (1) the refusal to give its requested charge No. 1; (2) the refusal to give its requested charge No. 5; (3) the giving of the plaintiff’s special charge No. 2; (4) the giving of that portion of the general charge to the giving of which the defendant excepted; (5) the giving of plaintiff’s special charge No. 3.
If we have not misconceived the effect of the. testimony, the first two of these assignments do not require any notice, further than to say that it is difficult for us to conceive in what light this evidence could be so set or read as to make it appear, to able lawyers, to warrant the asking of these requested charges.
We pass, for notice further on, the third error assigned. The action of the court complained of in the fourth and fifth specifications of the assignment of errors was substantially correct. It is supported by the decisions of the supreme court, and by accepted precedents and text writers cited in the opinion of that court. Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, and authorities therein cited.
The action of the trial court complained of in the third error-assigned appears to us to be subject to the criticism suggested by counsel for plaintiff in error in their printed brief, and in Mr. Freeman’s oral argument. The language of the given special charge is in substance, and almost literally, similar to a charge