Northern Pacific Railroad v. Holmes

14 P. 688, 3 Wash. Terr. 202, 1887 Wash. Terr. LEXIS 53

• Court: Washington Territory
• Decided: February 4, 1887
• Status: Published

Opinions

Mr. Chief Justice Greene

delivered the opinion of the court.

Plaintiff in error was sued by the defendant in error to recover damages for injuries suffered in a collision between the team of the latter and the railway train of the former. The action resulted in a verdict against the railway company, and this writ of error is taken from the judgment rendered thereon.

One of the errors assigned is the refusal of the district judge to allow the counsel for the company to interrogate the jurors, while they were being selected, as to their relations to the plaintiff’s attorneys, and particularly whether they were clients of plaintiff’s attorneys. It appears that the jurors were being examined in their voir dire, as customary in our courts, and that no issue of fact on a challenge made was pending. It does not appear but that the jurors whom it was proposed to interrogate were members of the regular panel, respecting whose relations there had been ample opportunity for investigation before they were called into the box. We regard the line of inquiry proposed as a proper one to be pursued in the trial of a challenge for actual bias, or in tbe endeavor to become acquainted with a talesman or other juror, respecting whose antecedents there has been no previous fair means of information, but we do not perceive that in the instance before us the judge departed from a legitimate exercise of his discretion. After the plaintiff’s evidence was all in, the defendant moved for a nonsuit, and the most interesting and main question submitted for decision in this case is upon this motion for nonsuit, whether any contributory negligence of the plaintiff appears as matter of law from his ■evidence. Unless he was free from such negligence, he could not rightly recover. (Continental Improvement Co. v. Stead, 95 U. S. 161, 164.) Negligence of the railway company’s employees could be no excuse for his negligence. (Railroad Co. v. Houston, 95 U. S. 697, 702.) If, at the close of his evidence his negligence contributing to his injury, so clearly appeared, that in case the cause were submitted to the jury without further evidence, the court would be warranted in setting aside a verdict in his favor, then the duty of the court was to grant the defendant’s motion for a nonsuit. (2 Rorer on Railroads, 1061; Wilds v. Hudson R. R. Co., 29 N. Y. 315; W. P. R. R. Co. v. Adams, 19 Am. & Eng. R. R. Cas. 379 (Kan.); Merchants’ Bank v. State Bank, 10 Wall. 637; Oscanyan v. W. R. Dumas Co., 103 U. S. 261.)

When the plaintiff closed his evidence, and the motion for nonsuit was made, it appeared from his own testimony, under the most favorable interpretations of it for him, and without any qualification, that the injury of which he complains was inflicted upon him by a switch-train of defendants’ cars while he, in a buggy drawn by two horses, gentle and manageable, which he was driving, was crossing the main railroad track of the defendant at a street crossing, upon the track grade, in defendants’ switch-yard, in the town of Sprague; that he was crossing the track from east to west, along a street at right angles, or nearly so, to the main track; that north of the main track, five or six feet from it, and parallel to it, was a side-track, running east and west a considerable distance each way; that on the side-track, overlapping five or six feet upon the street, and extending eastward, stood a line of several box cars; that a little to the eastward of the street, and along the north side of the sidetrack, was a depot with a platform to the west of it; that the crossing was planked, and that the planking extended northward along the end of the depot platform, and for the width of the street, to a distance of twenty-five or thirty feet from the main track; that the plaintiff approached the main track with his horses trotting at the rate of five or six miles an hour, and when about sixty feet from the track saw the train, consisting of two box cars, two flat cars, and a caboose, with a locomotive in the midst of them, and which, did not look to him like a regular train, pass rapidly eastward over the crossing, and out of sight behind the box cars standing on the side-track; that after this, owing to the position of the box cars, he saw and could see no more of the train until a few'seconds before the collision, but he saw the yard-master standing at a switch on the opposite side of the main track; that he continued driving at a trot till his horses came to the planking, where there was a little rise, to meet which he slowed them to a walk; that as soon as the train passed eastward, two wagons, each drawn by two horses, one team close behind the other, started from the opposite side of the main track, where they had been waiting, and crossed the track towards him, keeping together, and passed him as his team went over the planking, all six of the horses being on the planking at the same time; that after reaching the planking, he kept his horses moving at a walk, without stopping, and without speaking to any one, and without hearing any whistle or bell or other noise of the train, though listening, until suddenly, as he got by the end of the standing box cars, he discovered the train close upon him, and whipped up his horses on the main track, and as they sprang forward, heard a cracking, and knew no more till the doctor was working at his head.

It further appeared from his testimony that prior to his injury he had resided in the town of Sprague eighteen months, had worked for the railway company in its car-shops there nearly a year, was familiar with the crossing, had frequently crossed it going to and from his work,, and was familiar also with the switch-yard and the location of the switches therein. We think that this-statement of facts, substantially as narrated by the plaintiff himself, clearly shows that he was guilty of culpable and contributory negligence, and that his case is not to-be distinguished in principle from the multitude of cases in which the highest courts of most of the states, and the Supreme Court of the United States, have held, under analogous circumstances, the existence of contributory negligence to be a question of law for the court, and not one of fact for the jury. (Beach on Contributory Negligence, sec. 63; Chicago etc. R. R. v. Lee, 68 Ill. 578, 78 Ill. 454; Williams v. Railroad Co., 64 Wis. 1; Fleming v. Western Pacific R. R. Co., 49 Cal. 253; Salter v. Railroad Co., 75 N. Y. 278; Railroad Co. v. Depew, 40 Ohio St. 121; Haas v. Cedar Rapids etc. R. R. Co., 47 Mich. 401; Zimmerman v. Hannibal etc. R. R. Co., 2 Am. & Eng. R. R. Cas. 191 (Mo.); Railroad Co. v. Ritchie, 102 Pa. St. 425; Railroad Co. v. Hunter, 5 Am. Rep. 214 (Ind.); B. & O. R. R. Co. v. Hobbs, 19 Am. & Eng. R. R. Cas. 337 (Md.); Tucker v. Duncan, 6 Am. & Eng. R. R. Cas. 268 (U. S. Cir. Ct. Miss.); Schofield v. Chicago etc. R. R. Co., 114 U. S. 615; Kennedy v. Chicago etc. R’y Co., Sup. Ct. Iowa, Apr. 1886, 27 N. W. Rep. 743.) Plaintiff’s danger was greater, and called for greater caution, by reason of the interruption of his view. (Chase v. Maine etc. R’y Co., 5 Atl. Rep. 771; Schofield v. Chicago etc. R. R. Co., 2 McCrary, 268; Tucker v. Duncan, supra.) If his view had not been obstructed, his duty would have been to look and see where the train was, and what it was about, and if he did not he would not have been entitled to damages if injured. (Beach on Contributory Negligence, supra, and cases cited.) As his view was obstructed, he was in duty bound to do the nearest equivalent thing reasonably within his power, and likely to occur to a man of ordinary prudence so circumstanced, use the eyes of others who could see, by inquiring of them, or listen the more intently and with greater precaution, using such reasonable and obvious means of making listening effective as would occur to an ordinary man. It would have been a reasonable, prudent, and obvious thing for him to have inquired of either of the drivers of the two teams he met, or of the yard-master, whether it was safe for him to venture to cross, or whether the train was coming. It would have been an obvious and prudent and reasonable thing for him to have waited till the transient noise-of horse-hoofs and wagons on the planking had subsided, or at least to have stopped his own team and silenced his part of the noise so that he could listen to advantage. We are confident that an ordinarily intelligent and prudent man would have done one or the other or all of these things, and that if the plaintiff had been thus careful, he would not have been hurt. The noise on the planking was one which he knew he was helping to make, which he must have known would tend to prevent his hearing the train, and which was operating to prevent his hearing it just as the standing box cars were to prevent his seeing it. It was not some distant noise, recognizable as of no special significance, and for which the rumbling of the train . might, notwithstanding ordinary care, be mistaken; nor was it a continuing noise, beyond his control, like the din of a factory; but it was a noise close to him, created in part by himself, and from which a few seconds of patience would wholly relieve him. If, as he approached the track, he had taken the precaution to listen as he ought, and had heard nothing, or to have inquired about the train, and had been answered untruly or not at all, his case would have been a very different one from what it is, and then might have consisted with a verdict in his favor. But such is not his case. His injuries are proved out of his mouth to be due largely or wholly to his own gross imprudence in not stopping and listening, or in not otherwise, up to the limit of ordinary good sense, making use of his wits to ascertain the whereabouts and attitude of the hidden train.

The rule illustrated by the array of cases above cited, and requiring a traveler before trying to cross a railroad to look and listen attentively for a passing train, and if necessary for the purpose stop, is not a rule in favor of diminished liability in cases of collisions, but rather the contrary. It is a necessary and wholesome rule in favor of human life. There are human lives on railroad trains as well as in wagons. These lives must be preserved by just rules of law. One living in the vicinity of a railroad at this day must be ■ presumed to be well aware of the terrible destructive energy active in a locomotive or stored up in a moving train. If such a person undertakes to drive a team across the railway, he must be presumed to know that he is going into a situation of great possible danger, and that a collision with his team is liable not only to kill him, but to derail a train and kill others. Should, through his negligence in crossing the track, an injury happen to an innocent passenger on the train, even though negligence of the employees of the railway company should have contributed to the injury, he or his estate would be liable to that passenger for full compensatory damages. If guilty of such negligence as would render him liable to an injured passenger, he would be guilty of such contributory negligence to any injury suffered by himself as would preclude his own recovery of any damages from the railway company.

Now, suppose a change in the case before the court. Suppose the collision had happened when and where it did, and the employees of the railway company were in fact not at all to blame; suppose, further, that the plaintiff being a very rich man, had driven on the track just as he did, with no more and no less care than he actually, according to his own account, exercised, and the caboose had been derailed and a brakeman crippled for life, and that the brakeman seeing a good prospect of collecting a judgment if he could get one, sued the plaintiff, and that the case before the court and jury, upon evidence displaying all these facts, was between the brakeman as plaintiff, and this plaintiff as defendant, and the question was, whether the latter had been guilty of negligence entitling the brakeman to compensation; — there can, we think, be no doubt but what the brakeman would be held entitled to recover. And why? Because Mr. Holmes had not taken care enough of his own body? No; but because he had not, under the circumstances surrounding him, used that care and caution which the public in its own interest and in the interest of every member of it has a right to demand, that a man so circumstanced shall exhibit. But if the plaintiff, with the light of justice thus reversed upon him, would have been deemed negligent and causative of and responsible for consequences, then in his position, amid the realities of this case, he was and must be held guilty of contributory negligence. But while we thus condemn his conduct, and say it bars his recovery, we are disposed to think the jury were fully justified in finding very reprehensible negligence in the employees of the railway company. .

The box cars, it would seem, should not have been left standing where they were, partly obstructing the crossing and largely obstructing the view. The fact that they were there cast upon the employees of the company a greater burden of caution. The locomotive bell, if rung at all, was not rung as under the circumstances it should have been, and there was no efficient lookout to serve the blind end of the train. Had Holmes been killed, there can be little doubt that one or more of the employees would have been indictable for manslaughter. It would seem that our criminal law is defective in not providing punishment for what might be termed a “ negligent assault.” Were such a crime created, a temptation would be removed, from juries who love justice to seek to arrive at it by punishing what should be crime through the medium of a civil verdict.

As our opinion on the question of nonsuit is decisive of the case, we do not think it necessary to pass on the other points made in the brief of counsel for plaintiff in error.

Let the judgment of the District Court be reversed, and the cause remanded, with directions to grant the defendant’s motion for a nonsuit.

Hoyt, J., concurred.