FITZHENRY, District Judge.
Defendants’ motion, at the close of all of the evidence, for a peremptory instruction to the jury to find the defendants not guilty, raises two material questions: (1) Whether the defendants willfully injured plaintiff’s intestate, causing his death; and (2) if the injury was not the result of willful negligence on the part of defendants or their servants, then was plaintiff’s intestate guilty of contributory negligence just before and at the time of the injury?
It is too late now to contend that the count charging willful negligence, in plaintiff’s declaration, is insufficient, inasmuch as its insufficiency was not tested upon demurrer. If the evidence disclosed that the defendants were guilty of willful negligence, causing the injury, plaintiff would be permitted to correct the technical insufficiencies of the count by amendment.
In Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N. E. 242, cited by counsel for plaintiff, thp court had occasion to discuss the rule in Illinois as to wanton and willful injury. While, of course, the facts are altogether different from those here, the discussion of the Illinois Supreme Court is interesting :
“Willful' or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596 [29 N. E. 692, 32 Am. St. Rep. 218]; Heidenreich v. Bremner, 260 Ill. 439 [103 N. E. 275]; Illinois Central Railroad Co. v. Leiner, 202 Ill. 624 [67 N. E. 398, 95 Am. St. Rep. 266]. A willful or wantou injury must have been intentional.”
-1 do not believe there is any possible deduction that can be made from the facts established by the evidence in the ease at bar that the receivers or their servants deliberately intended to injure and kill plaintiff’s intestate. So that phase is entirely out of the ease. There is not the slightest testimony to sustain such a proposition.
It must have been intentional, “or the act must have been committed under circumstances exhibiting a reckless disregard for [999]*999the safety of others, such as a failure,” and not only a failure, but “after knowledge of the impending danger to exercise ordinary care to prevent it.” In other words, if the engineer here saw and knew the impending danger and the peril in which plaintiff’s intestate was situated, just before and at the time of the injury, and then failed to exercise ordinary care to avoid the injury that killed him, that might have been within the rule.
The operation of the rule, “after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or-carelessness when it could have been discovered by the exercise of ordinary care,” is entitled to consideration.
If Engineer Donnelly, through recklessness or carelessness, failed to acquaint himself with the peril in which the deceased was situated at the time, and did not use ordinary care to avoid it, it might have been willful negligence under the rule announced by the Illinois Supreme Court. But, when the established facts in this case are considered, much is lacking to bring it within the rule announced in Brown v. Illinois Terminal Co., supra, and which is sustained by the gTeat weight of authority.
The court is of the opinion that the evidence in this case is insufficient to sustain a charge of willful injury, even though plaintiff’s willful count had been in form.
On the question of contributory negligence, there has been some discussion by counsel about the conformity rule. By reason of the statute, in actions at law, the courts of the United States follow the practice of the courts of the state in which the federal court is sitting, except in so far as it may be modified by the federal law. Practice or procedure, however, is one thing, and substantive law is another. Where the substantive law in federal jurisprudence differs from that of the state in which the court is sitting, then, of course, the federal rule must be applied. It has long been the rule in Illinois that, if there is any competent evidence tending to sustain the contention of the plaintiff, then it is the duty of the court to submit the cause to the jury. The federal rule is different. Where the evidence is undisputed, or is so conclusive that the court in- the exercise of a sound judicial discretion would be compelled to set aside a verdict in opposition to it, then it is the duty of the court to direct a verdict. Southern Pacific Co. v. Pool, 160 U. S. 428, 16 S. Ct. 338, 40 L. Ed. 485.
The distinction between rules of practice as controlled by the Conformity Act (28 USCA §§' 724, 726, 727; Comp. St. §§ 1537, 1539, 1540), and the application of the rules of substantive law, is well illustrated in negligence cases. Under the Illinois law, the plaintiff in a case of this character cannot recover unless he charges and proves that his injury was the natural and proximate result of the negligence of the defendant and that the plaintiff himself, or his intestate, was in the exercise of ordinary care for his own safety just before and at the time of the injury. In other words, he must not only show that the defendant was negligent as charged, but the burden is upon him to prove-that he was guilty of no negligence contributing to the injury.
In the federal jurisdiction, the plaintiff-need not negative, in his declaration, the possibility of contributory negligence, as it is a defense which must be pleaded and proved by the defendant. The defense of contributory negligence has been interposed here.
The rule is thoroughly established that, if plaintiff’s intestate was guilty of any negligence contributing to the injury,, then there can be no recovery, and -it does not make any difference if the railroad was negligent. It may be considered a harsh rule, but it is the law, that plaintiff’s intestate, in order to sustain a recovery, must have been guilty of no negligence contributing to the injury.
Much has been said in argument at the bar about the recent decision of the United States Supreme Court in B. & O. R. R. Co. v. Goodman, Adm’x, etc., 48 S. Ct. 24, 72 L. Ed. — , in which the opinion was filed October 31, 1927. That was a ease very similar to this one. There defendant, in the trial court, made its motion for a directed verdict, which was denied. The jury returned a verdict for the plaintiff, upon which judgment was rendered; the judgment was affirmed by the Court of Appeals for the Sixth Circuit. 10 F.(2d) 58. The Supreme Court reversed the judgment.
I do not understand that the Supreme Court of the United States laid down any new rules in the Goodman Case. It does not reverse, or modify, or change, in any respect, the substantial rules in negligence cases of the character there disposed of by the court. But it does this: It admonishes the Circuit Courts of Appeal and the United States District Courts that it is their duty to apply the law in cases of this character. It has long been the law that, when a person goes into a place of danger, known by him to be a dangerous place, he must exercise [1000]
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FITZHENRY, District Judge.
Defendants’ motion, at the close of all of the evidence, for a peremptory instruction to the jury to find the defendants not guilty, raises two material questions: (1) Whether the defendants willfully injured plaintiff’s intestate, causing his death; and (2) if the injury was not the result of willful negligence on the part of defendants or their servants, then was plaintiff’s intestate guilty of contributory negligence just before and at the time of the injury?
It is too late now to contend that the count charging willful negligence, in plaintiff’s declaration, is insufficient, inasmuch as its insufficiency was not tested upon demurrer. If the evidence disclosed that the defendants were guilty of willful negligence, causing the injury, plaintiff would be permitted to correct the technical insufficiencies of the count by amendment.
In Brown v. Illinois Terminal Co., 319 Ill. 326, 150 N. E. 242, cited by counsel for plaintiff, thp court had occasion to discuss the rule in Illinois as to wanton and willful injury. While, of course, the facts are altogether different from those here, the discussion of the Illinois Supreme Court is interesting :
“Willful' or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596 [29 N. E. 692, 32 Am. St. Rep. 218]; Heidenreich v. Bremner, 260 Ill. 439 [103 N. E. 275]; Illinois Central Railroad Co. v. Leiner, 202 Ill. 624 [67 N. E. 398, 95 Am. St. Rep. 266]. A willful or wantou injury must have been intentional.”
-1 do not believe there is any possible deduction that can be made from the facts established by the evidence in the ease at bar that the receivers or their servants deliberately intended to injure and kill plaintiff’s intestate. So that phase is entirely out of the ease. There is not the slightest testimony to sustain such a proposition.
It must have been intentional, “or the act must have been committed under circumstances exhibiting a reckless disregard for [999]*999the safety of others, such as a failure,” and not only a failure, but “after knowledge of the impending danger to exercise ordinary care to prevent it.” In other words, if the engineer here saw and knew the impending danger and the peril in which plaintiff’s intestate was situated, just before and at the time of the injury, and then failed to exercise ordinary care to avoid the injury that killed him, that might have been within the rule.
The operation of the rule, “after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or-carelessness when it could have been discovered by the exercise of ordinary care,” is entitled to consideration.
If Engineer Donnelly, through recklessness or carelessness, failed to acquaint himself with the peril in which the deceased was situated at the time, and did not use ordinary care to avoid it, it might have been willful negligence under the rule announced by the Illinois Supreme Court. But, when the established facts in this case are considered, much is lacking to bring it within the rule announced in Brown v. Illinois Terminal Co., supra, and which is sustained by the gTeat weight of authority.
The court is of the opinion that the evidence in this case is insufficient to sustain a charge of willful injury, even though plaintiff’s willful count had been in form.
On the question of contributory negligence, there has been some discussion by counsel about the conformity rule. By reason of the statute, in actions at law, the courts of the United States follow the practice of the courts of the state in which the federal court is sitting, except in so far as it may be modified by the federal law. Practice or procedure, however, is one thing, and substantive law is another. Where the substantive law in federal jurisprudence differs from that of the state in which the court is sitting, then, of course, the federal rule must be applied. It has long been the rule in Illinois that, if there is any competent evidence tending to sustain the contention of the plaintiff, then it is the duty of the court to submit the cause to the jury. The federal rule is different. Where the evidence is undisputed, or is so conclusive that the court in- the exercise of a sound judicial discretion would be compelled to set aside a verdict in opposition to it, then it is the duty of the court to direct a verdict. Southern Pacific Co. v. Pool, 160 U. S. 428, 16 S. Ct. 338, 40 L. Ed. 485.
The distinction between rules of practice as controlled by the Conformity Act (28 USCA §§' 724, 726, 727; Comp. St. §§ 1537, 1539, 1540), and the application of the rules of substantive law, is well illustrated in negligence cases. Under the Illinois law, the plaintiff in a case of this character cannot recover unless he charges and proves that his injury was the natural and proximate result of the negligence of the defendant and that the plaintiff himself, or his intestate, was in the exercise of ordinary care for his own safety just before and at the time of the injury. In other words, he must not only show that the defendant was negligent as charged, but the burden is upon him to prove-that he was guilty of no negligence contributing to the injury.
In the federal jurisdiction, the plaintiff-need not negative, in his declaration, the possibility of contributory negligence, as it is a defense which must be pleaded and proved by the defendant. The defense of contributory negligence has been interposed here.
The rule is thoroughly established that, if plaintiff’s intestate was guilty of any negligence contributing to the injury,, then there can be no recovery, and -it does not make any difference if the railroad was negligent. It may be considered a harsh rule, but it is the law, that plaintiff’s intestate, in order to sustain a recovery, must have been guilty of no negligence contributing to the injury.
Much has been said in argument at the bar about the recent decision of the United States Supreme Court in B. & O. R. R. Co. v. Goodman, Adm’x, etc., 48 S. Ct. 24, 72 L. Ed. — , in which the opinion was filed October 31, 1927. That was a ease very similar to this one. There defendant, in the trial court, made its motion for a directed verdict, which was denied. The jury returned a verdict for the plaintiff, upon which judgment was rendered; the judgment was affirmed by the Court of Appeals for the Sixth Circuit. 10 F.(2d) 58. The Supreme Court reversed the judgment.
I do not understand that the Supreme Court of the United States laid down any new rules in the Goodman Case. It does not reverse, or modify, or change, in any respect, the substantial rules in negligence cases of the character there disposed of by the court. But it does this: It admonishes the Circuit Courts of Appeal and the United States District Courts that it is their duty to apply the law in cases of this character. It has long been the law that, when a person goes into a place of danger, known by him to be a dangerous place, he must exercise [1000]*1000care for his own safety commensurate with the dangers and-incidental’perils he encounters in entering the place; he must exercise that degree of care which an ordinarily prudent person would exercise under like circumstances.
A railroad crossing, even in the great open spaces, is a dangerous place. A railroad crossing, where it crosses one of the main highways or streets of a city or village, is a dangerous place. This was a dangerous place — the place where this accident happened. It might have been avoided, of course, if the engineer in charge of this locomotive and train had seen plaintiff’s intestate and known and appreciated the peril in which he was situated in time to have stopped the train. But, on the other hand, if the engineer saw the plaintiff’s intestate when the latter was about 40 or 45 feet from the track, he had a right to presume that plaintiff’s intestate would not go upon the tracks and suffer injuries to himself which might cause his death, because that is the course of conduct that an ordinarily prudent person would» exercise under similar circumstances. And yet, when plaintiff’s intestate approached the crossing at the time in question, he must have known, from the evidence in this case, that ordinarily it was a dangerous crossing. He lived in Williamsville, had his place of business close to the crossing where this accident happened, and knew that the big, fast trains of the Alton Railroad ran through the village. He knew as well as anybody could know that, if he got on the tracks and one of those trains was due or coming, he might be struck and hurt.
It was a clear day. Plaintiff’s intestate was proceeding in an easterly direction. When he was within 40 or 45 feet west of defendants’ south-bound track, he could see, if he had looked, up the railroad for miles. North of the village there was a slight curve in the railroad track to the east. This gave a wider range to the vision of plaintiff’s intestate from that point.
The court feels that there can be no question from this evidence, and the facts are practically undisputed, that plaintiff’s intestate was guilty of negligence which contributed to his injury and death. This conclusion is inescapable.- Just what he thought there, of course,’ will always be unknown. The 'evidence does show that, when he was more than 40 feet west of the south-bound main track upon which this train was traveling, upon the day in question, he must have known the train was coming. He attempted to slow down the speed of his automobile, and, unless he was going at a rate of speed very much greater than has been testified to by any of the witnesses, he should have been able to stop his car before he reached the track. While., of course, there is no direct evidence upon which to base it, the conclusion might be drawn from the circumstances that, when the deceased was within 40 or 45 feet of the track, he saw the train, thought he could get across, and started, and, of course, he erred in his calculation.
This explanation as to what might have happened would explain the fact that he applied the brakes to the extent that witnesses heard them squeak when hé was about 40 feet or more from the track, and yet he was struck. This is the only reasonable explanation that can be made, because, unless the facts of the speed of the ear are out of all proportion to the estimates of the witnesses, he would not have been struck if he had applied his brakes and did- -not release them. There were two witnesses who testified they heard his brakes squeak. The young man in the restaurant said he ■ saw the occupants of the car laughing, and saw the deceased lean over as though he were pulling up the emergency brake. When at that point, in front of the restaurant, deceased was applying the emergency brake incidental to stopping, he looked up, saw the train, and thought, “Well, I can get across,” tried to beat the train, and failed. This is a possible explanation of what happened at this crossing.
The accident was most unfortunate, but this is a lawsuit; it is governed by the rules of law. Judges sitting upon the bench find no pleasure in denying a widow a recovery in a case of this character. It is easy to deny a motion for a directed verdict and let the jury pass upon the facts, and then more or less embarrassing to have to set aside the verdict. Expenses and inconvenience accumulate, and yet eventually any judgment based on such facts as appear here must be reversed. The Goodman Case, supra, was just such a case. The opinion in that cáse was a dear admonition by the Supreme Court to trial courts to apply the law.
The motion will be allowed, and the jury instructed to find the defendants not guilty.