PHILIPS, District Judge,
after stating the case as above, delivered the opinion of the court.
When a person is found dead beneath a moving engine of a railroad, along its ordinary right of way, no presumption arises that his death was occasioned by the culpable negligence of those operating the engine. The presumption is that the operators were without fault, and the burden throughout rests upon him who asserts the contrary to establish it by satisfactory proofs. Nothing can be inferred from the bare fact that a foot passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing. Webb’s Pollock on Torts, 54.5-547; Wakelin v. L. & S. W. R. Co., 12 App. Cas. 41.
While it may be conceded that, in so far as the general public was concerned, having occasion to use the Wall street crossing at the time and place of this accident, the city or the railroad company, or both, might have been derelict in considerate precaution in not maintaining an electric light, or some other assisting light, or a watchman, to warn parties of the passing of engines, yet in determining this case regard must be had to the duties of both the railroad company and Chapman, keeping in view the knowledge of each of the situation, the customary method of the movement of engines, and what would reasonably be expected of Chapman in approaching said crossing. On the one hand, the long-established practice of the railroad was not to maintain an arc light at said crossing, or a watchman there after 10 o’clock at night. It was also the long-established custom of the railroad company at that station, which was a division point, on the arrival of the train due at that time of night, to detach the engine drawing the incoming train, run it across the street down south, as the evidence shows, and back again over the street to the roundhouse, and simultaneously, or [132]*132nearly so, therewith bring the engine in waiting across the street,, to be attached to the train of cars standing at the station. These switching movements were conducted in the usual manner on the occasion in question. On the other hand, the evidence warrants the conclusion that the deceased was familiar with the general facts aforesaid. For a considerable period anterior to the accident he was in the habit, in going to and fro, of taking the train due to arrive and depart at the time and place in question. Frequently he would arrive at Ft. Scott at 8 or 9 o’clock in the evening from some other train, go to the same hotel, await the arrival of said train coming from the north, and then go to the depot to take the train for his home in Pittsburg, Kan. He was necessarily familiar with the location and the number of tracks, the changing of engines, and the method of switching them. He must have known that there was no arc light or watchman maintained at said crossing at that hour of the night; and, as the evidence shows, that such switching had hitherto uniformly been done without any light or watchman on the tender of such engines, such fact could not reasonably be presumed to have escaped his observation. With all this knowledge, he saw fit, as the evidence tends to show, to remain at his hotel until he barely had time to walk to the station to board the train before it would move out.
The obligation of the railroad company must be viewed in its relation to such a pedestrian attempting then and there to cross its tracks. He had no right to assume that the conduct of the business of the railroad company would be any wise different from what were as much known to himself as to those in charge of the moving engines. The law of the land exacted of him a degree of circumspection and caution in approaching such a place, commensurate with the danger to be reasonably anticipated. If the night was so dark as to obscure his vision, the law all the more required of him to call into requisition his sense of hearing. In view of all the facts and circumstances in evidence, it challenges our comprehension how Chapman, a man of intelligence, with good sight and hearing, familiar with the situation, could have failed to be aware of the presence of said engines, if he was in the exercise of due care on his part. .The very situation, of which he must have been conscious, was calculated to quicken his. sense of alertness and excite his apprehension. The electric headlights on the engines were ablaze, which the evidence shows radiated on either side from 6 to 10 feet from the head of the engines, and widened as the distance in front increased. Why a person approaching said crossing, as did Chapman, who must have heard the bells ringing on the engines, if he was listening, could not have seen this radiating light from the engines, is inexplicable. The engineers in charge were complying with the statutory requirement by constantly keeping the bells ringing while the engines were in motion about said crossing. it had hitherto approaching such a place
It is a conspicuous fact that every other person who was found to have been going to the station at the same time, in approaching [133]*133said crossing from the same side on which Chapman approached it, had his attention directed to the movements of these engines. The hackman, who approached the crossing about the time Chapman did, discovered the presence of these engines at said crossing in time to avoid collision with them. While he testified that he did not discover the presence of the engines until almost at them, as he was quite familiar with the custom of said switching pro-gramme, he would have been guilty of most culpable negligence had he gone against them without stopping his hack to take scrutinizing observation. Chapman was seen by one of the witnesses going toward the same station, going on the sidewalk from the Tremont House, in advance, in the same direction, immediately before the accident. It is quite immaterial, for the purpose of determining the movements and conduct of Chapman at the time, whether or not said witness was mistaken in stating that he saw the glow of the headlights in the engines as they approached the crossing. The fact remains that he' did see the movements of the engines, and was aware of their approach to and over the crossing.
There is another uncontradicted and important fact disclosed in the evidence. The fireman on engine 236 testified that, with a lighted lantern, he threw the switch, when the engine was south of the street, to let engine 236 pass; that he then went to the sidewalk of Wall street with the lantern in his hand to take observation to see if any one was on or about the crossing. He then returned to the switch and gave the signal to the engineer of 236 to back up. After this engine passed the switch he was detained a short time on account of some disarrangement about the switch, and while so engaged engine 98 passed him going to the crossing, just behind engine 236. All this occurred while engine 98 was south of the crossing. The switchman was thus in the open, with his lighted lantern south of Wall street, while Chapman was approaching the intersection of the tracks. Chapman could not have looked without seeing these movements of the lantern. The very darkness rendered its light more distinct. He could not have been listening without hearing the ringing of the bells and the noise of the engines. If he neither saw the one nor heard the other, it was because he Afras heedless, and not taking the reckoning of the situation which his knowledge imperatively demanded of him.
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PHILIPS, District Judge,
after stating the case as above, delivered the opinion of the court.
When a person is found dead beneath a moving engine of a railroad, along its ordinary right of way, no presumption arises that his death was occasioned by the culpable negligence of those operating the engine. The presumption is that the operators were without fault, and the burden throughout rests upon him who asserts the contrary to establish it by satisfactory proofs. Nothing can be inferred from the bare fact that a foot passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing. Webb’s Pollock on Torts, 54.5-547; Wakelin v. L. & S. W. R. Co., 12 App. Cas. 41.
While it may be conceded that, in so far as the general public was concerned, having occasion to use the Wall street crossing at the time and place of this accident, the city or the railroad company, or both, might have been derelict in considerate precaution in not maintaining an electric light, or some other assisting light, or a watchman, to warn parties of the passing of engines, yet in determining this case regard must be had to the duties of both the railroad company and Chapman, keeping in view the knowledge of each of the situation, the customary method of the movement of engines, and what would reasonably be expected of Chapman in approaching said crossing. On the one hand, the long-established practice of the railroad was not to maintain an arc light at said crossing, or a watchman there after 10 o’clock at night. It was also the long-established custom of the railroad company at that station, which was a division point, on the arrival of the train due at that time of night, to detach the engine drawing the incoming train, run it across the street down south, as the evidence shows, and back again over the street to the roundhouse, and simultaneously, or [132]*132nearly so, therewith bring the engine in waiting across the street,, to be attached to the train of cars standing at the station. These switching movements were conducted in the usual manner on the occasion in question. On the other hand, the evidence warrants the conclusion that the deceased was familiar with the general facts aforesaid. For a considerable period anterior to the accident he was in the habit, in going to and fro, of taking the train due to arrive and depart at the time and place in question. Frequently he would arrive at Ft. Scott at 8 or 9 o’clock in the evening from some other train, go to the same hotel, await the arrival of said train coming from the north, and then go to the depot to take the train for his home in Pittsburg, Kan. He was necessarily familiar with the location and the number of tracks, the changing of engines, and the method of switching them. He must have known that there was no arc light or watchman maintained at said crossing at that hour of the night; and, as the evidence shows, that such switching had hitherto uniformly been done without any light or watchman on the tender of such engines, such fact could not reasonably be presumed to have escaped his observation. With all this knowledge, he saw fit, as the evidence tends to show, to remain at his hotel until he barely had time to walk to the station to board the train before it would move out.
The obligation of the railroad company must be viewed in its relation to such a pedestrian attempting then and there to cross its tracks. He had no right to assume that the conduct of the business of the railroad company would be any wise different from what were as much known to himself as to those in charge of the moving engines. The law of the land exacted of him a degree of circumspection and caution in approaching such a place, commensurate with the danger to be reasonably anticipated. If the night was so dark as to obscure his vision, the law all the more required of him to call into requisition his sense of hearing. In view of all the facts and circumstances in evidence, it challenges our comprehension how Chapman, a man of intelligence, with good sight and hearing, familiar with the situation, could have failed to be aware of the presence of said engines, if he was in the exercise of due care on his part. .The very situation, of which he must have been conscious, was calculated to quicken his. sense of alertness and excite his apprehension. The electric headlights on the engines were ablaze, which the evidence shows radiated on either side from 6 to 10 feet from the head of the engines, and widened as the distance in front increased. Why a person approaching said crossing, as did Chapman, who must have heard the bells ringing on the engines, if he was listening, could not have seen this radiating light from the engines, is inexplicable. The engineers in charge were complying with the statutory requirement by constantly keeping the bells ringing while the engines were in motion about said crossing. it had hitherto approaching such a place
It is a conspicuous fact that every other person who was found to have been going to the station at the same time, in approaching [133]*133said crossing from the same side on which Chapman approached it, had his attention directed to the movements of these engines. The hackman, who approached the crossing about the time Chapman did, discovered the presence of these engines at said crossing in time to avoid collision with them. While he testified that he did not discover the presence of the engines until almost at them, as he was quite familiar with the custom of said switching pro-gramme, he would have been guilty of most culpable negligence had he gone against them without stopping his hack to take scrutinizing observation. Chapman was seen by one of the witnesses going toward the same station, going on the sidewalk from the Tremont House, in advance, in the same direction, immediately before the accident. It is quite immaterial, for the purpose of determining the movements and conduct of Chapman at the time, whether or not said witness was mistaken in stating that he saw the glow of the headlights in the engines as they approached the crossing. The fact remains that he' did see the movements of the engines, and was aware of their approach to and over the crossing.
There is another uncontradicted and important fact disclosed in the evidence. The fireman on engine 236 testified that, with a lighted lantern, he threw the switch, when the engine was south of the street, to let engine 236 pass; that he then went to the sidewalk of Wall street with the lantern in his hand to take observation to see if any one was on or about the crossing. He then returned to the switch and gave the signal to the engineer of 236 to back up. After this engine passed the switch he was detained a short time on account of some disarrangement about the switch, and while so engaged engine 98 passed him going to the crossing, just behind engine 236. All this occurred while engine 98 was south of the crossing. The switchman was thus in the open, with his lighted lantern south of Wall street, while Chapman was approaching the intersection of the tracks. Chapman could not have looked without seeing these movements of the lantern. The very darkness rendered its light more distinct. He could not have been listening without hearing the ringing of the bells and the noise of the engines. If he neither saw the one nor heard the other, it was because he Afras heedless, and not taking the reckoning of the situation which his knowledge imperatively demanded of him.
The evidence furnishes little room for doubt that in his approach Chapman did not stop until he reached a point between the two tracks on the east side, the outer one on which engine 236 moved, and the next on which engine 98 approached. The space between the two tracks on the south side of Wall street was planked, used in case of two trains coming in there to transfer the baggage and passengers. If intended by Chapman to be used at the time in boarding the cars, he was familiar with its exact position. The position in which the grips he was carrying in either hand were found leaves no doubt that he stopped on this platform just before engine 236 passed. He was seen there by the engineer on 236 as his engine passed him. His very feet told him that they were pressing on the planked platform. As this platform left a space [134]*134of nine feet between the rails of the two tracks, and five or six feet between passing engines, there was ample space for him to stand safely thereon. The testimony of the engineer on 236 was that he looked down on the man as he passed, standing about midway between the tracks, with his face toward his engine. How or why he got back so as to be struck by engine 98 is but matter of speculation. It is suggested in argument that, as quite a volume of steam was being emitted by the passing engine 236, Chapman may have stepped back to get out of it, and thus went too close to the rail on which engine 98 was coming. This is but a surmise, and not a fact proven directly or indirectly. But even if it was a fact, does it help the case of the defendant in error? It would show that Chapman was taking no heed of the approaching engine, with its bell ringing, when the evidence discloses a state of facts warranting the conclusion that he had reason to know that there were two engines moving simultaneously on the two approximate tracks. If, with his knowledge of the proximity of the two tracks, he thoughtlessly stepped back merely to get out of the steam, to which he had unnecessarily exposed himself, so as to collide with engine 98, is the railroad company to answer for the result? As said by Mr. Justice Field in Little v. Hackett, 116 U. S. 371, 6 Sup. Ct. 391, 393, 29 L. Ed. 652:
“That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.’’
The deceased voluntarily placed himself in a known place of danger, in which he could not escape the responsibility of looking out for the approach of both engines. Fie could but know, had he looked when he approached that platform, that neither engine had passed over the crossing, as their headlights would have notified him of the fact. “The law recognizes the track of an operated railroad as a place of danger, of which danger a view of the track conveys notice; and, when a person goes upon such track, or so near as to be within the overhang of the cars or engine, ordinary care requires that he be alert in the use of his senses of sight and hearing to' guard himself from harm. And 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. I-f the use of these senses is interfered with by obstructions or by noises, ordinary, reasonable care calls for proportionately increased vigilance.” Garlich v. Northern Pac. Ry. Co., 131 Fed. 839, 67 C. C. A. 237.
From his charge to the jury respecting the reciprocal duties of the railroad company and the pedestrian in the use of said crossing, it is apparent that the learned judge was impressed with the fact that the defendant in error had a very narrow margin on which to -stand; and it is highly probable that an intelligent jury would have [135]*135returned a verdict for the defendant below, but for the following portion of the charge:
“So far as shown by the evidence in this case there was no eye-witness to the accident resulting in the death of the deceased; no one to tell just how it happened. In such cases the law, out of regard to the natural instinct of self-preservation, presumes that at the time of the accident the deceased was exercising due care. Under such circumstances this presumption takes the place of and serves as evidence, and it is not overthrown by the mere fact of the injury. The burden rests upon the defendant to overcome this presumption. Consequently there is a presumption that deceased looked and listened for approaching engines before venturing upon the tracks, and adopted such other precautions as an ordinarily prudent and cautious man would have adopted under like circumstances.”
If this doctrine of presumption has any applicability to a death occurring at such railroad crossing, in view of the positive cautious circumspection the law imposes upon a person approaching such place of recognized danger, its call to the attention of the jury in this instance was misleading. Such presumption can only apply in the absence of any testimony explanatory of the conduct of the person at the time and the manner of his injury. The evidence in this case practically traced Chapman from the time he left his hotel for the train until the moment almost of his death. It shows that he left the hotel for the train with his grips and his overcoat, wearing a stiff hat. A man going in that direction was observed-by a witness going toward the station, as also by the hack driver. No other person was found to correspond with the movements of this man. And when his body was found under the engine there were present the two -grips, the stiff hat-, and overcoat to identify him. He was seen by the engineer on 236 just as it passed him, and his position was then defined. It was but a few seconds thereafter when he was struck by the engine. It was, therefore, palpably misleading under such a state of the facts to tell the jury that there was no eyewitness to 'the accident, and, because there was no one to tell just how it happened, the law presumes that at the time of the accident the deceased was exercising due care, and the burden was upon the defendant to overcome such presumption, and that there was a further presumption that the deceased looked and listened for approaching engines before venturing upon the tracks, and adopted the requisite precaution.
The verdict in this case cannot be sustained on this record without, in our opinion, ignoring the responsibility which the law affixes to the negligent act of the party injured contributing directly to the accident. The request made by the plaintiff in error for a direction to the jury to return a verdict for the defendant below should have been given.
The judgment of the Circuit Court must therefore be reversed, and the cause remanded, with directions for further proceedings in conformity with this opinion.