St. Louis & S. F. R. v. Whittle

74 F. 296, 20 C.C.A. 196, 1896 U.S. App. LEXIS 1921

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 17, 1896
• Docket: No. 633
• Status: Published

Opinions

THAYER, Circuit Judge.

This suit was brought by Bet tie Whittle, Charlie Whittle, and Frank Whittle, the defendants in error, against the St. Louis & San Francisco Railway Company, the plaintiff in error, to recover damages on account of the death of W. L. Whittle, who was killed at Cameron, in the Indian Territory, on the morning of November 9, 1893, by being run over by one of the defendant company’s passenger trains. The deceased, W. L. Whittle, was the husband of Bettie Whittle, one of the defendants in error, and the father of Charlie Whittle and Frank Whittle, the other defendants in error. The material facts on which the decision of the case depends do not admit of any dispute under the testimony preserved in the bill of excejitions, and they are as follows: The deceased, W. L. Whittle, resided with his family about four miles from the town of Cameron, in the Indian Territory. On the afternoon of .November 8, 1893, he came to the defendant company’s station in said town, in company with John E.. Martin, and one Stewart, to tain; a train for Ft. Smith, Ark. Tickets for the intended trip were purchased of the defendant, company’s station agent about 5 or 6 o’clock p. m. of that day, but the train on which they expected to take passage was not due at the station from the south until about midnight. The train in question did not stop at Cameron unless it was flagged, but no notice to that effect was given to the deceased when he purchased his ticket. The deceased came to the station with Ms two companions, above named, a short time before midnight, and was standing on the station platform as the train approached from the south. The station agent had retired for the night before the train arrived, and there was no one present representing the defendant company to flag the train. For that reason, a bystander on the station platform, who knew that the deceased desired to board the train, lit a match, a,nd waved it as a stop signal, when the engine was about 209 yards distant from the center of the station platform. The signal was seen by the engineer, and responded to by two short blasts of the whistle, but, owing to its speed, the train ran past the station a short distance; so that, when it stopped, the rear end of the rear car was about 200 feet north of the north end of the station. The night was very dark and misty. There were no lights about the station except a dim light in one of the station windows. When the train came to a halt, one of the bystanders on the station platform remarked to the persons who were intending to board the train, “You can go ahead and get on,” or words to that effect; whereupon Whittle, the deceased, stepped down from the platform onto the track over which the train had just passed, and started up the track to board the train, walking or running for that purpose between the rails. Very soon after the train stopped, the engineer reversed his engine, for thé purpose of backing the train down to the station, and enabling those who desired to do so to get aboard. By the backward movement of the train, the deceased was caught on the track, and instantly killed, at a point a little north of the north end of the station platform. The evidence was conflicting as to whether there were oí were not lights on the rear end of the train, and as to whether the engine bell was rung before the train started to back up. One of the plaintiff’s witnesses, George W. Noble, who was standing on the station platform when the accident occurred, testified that he heard the puffing of the engine when the train began to back up. Another witness for the plaintiff, John E. Martin, who was a brother-in-law of the deceased, testified, in substance, that he had not left the platform when the accident occurred, and that he was not aware that the train had begun to move either backward or forward, after it halted north of the station, until he was made aware of the fact that the train was moving backward by the outcry of the deceased when he was run over.

Numerous errors have been assigned to the action of the trial court, but the view that we have felt ourselves constrained to take will only render it necessary to notice two of the alleged errors.

At the instance of the plaintiff below, the. circuit court gave, among others, the following instruction; and the defendant company duly excepted thereto:

“The court further instructs the jury that it is not every negligent act on the part of deceased that amounts to such contributory negligence as would for that reason preclude plaintiff’s right to recover. Although the jury may believe from the evidence that the deceased was guilty of some negligence, yet, if the jury believe from all the evidence that the defendant’s employes operating the train by which the deceased was killed could, by the exercise of reasonable care and prudence upon tlieir part, have avoide,d killing the deceased notwithstanding his negligence, then the negligence of the deceased of itself would not prevent plaintiffs from recovering in this action.’’

This instruction, as applied to the undisputed facts which, were proven at the trial,- was misleading, and therefore erroneous. There was no evidence before the jury tending to show that either the engineer, conductor, or any other trainman had any knowledge or reason to believe that the deceased was on the track in the rear of the train when it began to hack up after it had run past the station. In the absence of such evidence, the rule of law that was invoked by the plaintiffs had no application to the cast; in hand, and ought not to have been given. An instruction like the one now in question is very proper, no doubt, in those cases where it appears that a person negligently placed himself in a position of danger, and the fact became known to the alleged wrongdoer in time to have taken certain precautions to avoid injuring him, which wore not taken. If an engineer in charge of a train sees a person walking on a railroad track, even at a place where he has no right to w'alk, he must, nevertheless, make all reasonable efforts to avoid injuring him. The fact that one person is guilty of negligence in placing himself in a dangerous situation does not absolve another person, when the fact becomes known, of the duty to make a reasonable effort to protect him from injury or from the consequences of his own carelessness. This principle is well established in the Law of Xegligence, but it lias no application except in those instances where the plaintiff’s dangerous situation was known to the defendant, and the latter thereafter omitted some reasonable precaution which might have been taken, and which precaution, if taken, would have; resulted in preventing the accident. In such cases it. is the last omission of duty which the law esteems the proximate cause of the injury, and it accordingly permits a recovery by the injured party notwithstanding his prior negligence. Railway v. Monday, 49 Ark. 257, 4 S. W. 782; Railway Co. v. Cavenesse, 48 Ark. 106, 2 S. W. 505; Shear. & R. Neg. § 99, and «tases there cited; Whart. Neg. § 323; Thomp. Neg. 113(5. As we have before remarked, there was no testimony in the case at bar which tended to show that the trainmen either knew or suspected that the deceased had placed himself in a position where he might be run over and killed as the train backed up, and, in the absence of such proof, it was erroneous to instruct the jury on that hypothesis.

The circuit court further erred, we think, in refusing, upon the testimony contained in this record, to charge the jury as it was requested to do, that the deceased was guilty of contributory negligence, and that there could be no recovery for that reason. The testimony showed without contradiction that the deceased voluntarily placed himself in a position of great danger, by going upon the track, and walking of running thereon towards the train, without’ waiting even for a moment to ascertain if it would hack down to the station. The night was dark and foggy; so dark in fact, as all the witnesses say, that it was impossible to tell, merely by looking, when the train began to move backward towards the station. If this be so, and if it is also true, as was contended by the plaintiffs below, that there were no lights on (he rear end of the train, and insufficient light about the platform, these facts rendered the risks that were assumed by the deceased in walking or running up the track so much the greater. Resides, as the train had actually stopped iñ obedience to the stop signal, and as the deceased had not b<»en invited or ordered by any of the trainmen or other employés of the. railroad company to come forward and get aboard, he must. have known that the train was at least as likely to move backward as to move forward, and to do so very soon. The danger to be apprehended, therefore, from going on the track under these circumstances, was great and imminent.

It has been repeatedly held that a railroad track is itself a warning of danger, and that one who voluntarily goes or walks upon a railroad track without looking to see if a train is approaching when his view is unobstructed is, as a matter of law, guilty of a want of ordinary care, which precludes a recovery for an injury sustained, even though the railroad company itself was guilty of negligence. Such was the rule of law declared by this court, after a full consideration of the subject, in Railway Co. v. Moseley, 12 U. S. App. 601, C. C. C. A. 641, and 57 Fed. 921, and in Railway Co. v. Bennett, 16 C. C. A. 300, 69 Fed. 525. See, also, to the same effect, Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Elliott v. Railroad Co., 150 U. S. 245, 14 Sup. Ct. 85; Bancroft v. Railroad Corp., 97 Mass. 275, 278; McGrath v. Railroad Co., 59 N. Y. 468, 472; Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. E. 741; Mulherrin v. Railroad Co., 81 Pa. St. 366, 375. ’ /hat shall be said, then, of the conduct of a person who voluntarily steps down on a railroad track from a station platform, and walks thereon towards a standing train that is liable to move backward or forward almost immediately, when it is too dark to see when it begins to move, or in which direction it is moving? It seems obvious to us that one who thus acts is equally as blameworthy as one who walks or drives across a railroad crossing without looking to see if a train is approaching, when he is able to do so. Even if we should concede, therefore,' — and we are not disposed to controvert the proposition, — that the defendant company was at fault in not stopping its train opposite to the station, and in not providing-sufficient lights about the depot platform, still the fact remains that after the train had passed the station, and the situation was well known to the deceased, he voluntarily placed himself in a dangerous position, which was not known to the trainmen, and, by so doing, directly contributed to his own death. The suggestion made to him or in his presence by the bystander, that he could go ahead and get on the train, was not in express terms, or by any fair legal intendment, a direction to walk up the track between the rails immediately in the rear of the standing train. ■ By thus walking on the track, he incurred, as we think, an unnecessary and an obvious risk; and it admits of no doubt that, but for such act, the disaster would not have happened.

It has been suggested, arguendo, that the fact that all men possess the natural instinct of self-preservation constituted in itself some evidence which warranted the jury in finding that Whittle exercised due care, and so the case was properly submitted to the jury. The answer to this suggestion is that the testimony in this case discloses what the deceased did on the occasion of the accident. It shows that he committed an unnecessary and negligent act,(.without which the accident would not have occurred. For that reason there is no room for presumption or inferences based on the fact that men are generally moved by the instinct of self-preservation. It is doubtless true that a man’s actions are usually prompted by a natural desire to guard against injury to himself; but that this desire is not strong enough, on all occasions, to insure the exercise oí reasonable care, is abundantly proven by our everyday experience that men will sometimes commit acts of negligence which imperil their own lives, as well as the lives of others. For these reasons we think that the argument last, suggested is entitled, on the facts oí this case, to little, if any, weight.

While the question of contributory negligence is ordinarily a question for the jury, yet it is a well established rule in the federal courts that when the facts are undisputed, and the proof of contributory negligence is so conclusive that the court would not sustain a contrary finding, it is its duty to direct a verdict for the deft ndant. No court is required to take the chances of a verdict being rendered which, if rendered, it would deem itself bound to set aside as wholly unsupported by evidence. Moreover, it is an undoubted right of an appellate court to determine, among other things, whether, upon the case as presented by the record, the trial court ought to have granted a peremptory instruction to find a verdict in favor of a particular partv to the controversy. Gowen v. Harley, 12 U. S. App. 574, 6 C. C. A. 190, 197, and 56 Fed. 973; Railway Co. v. Moseley, supra; Elliott v. Railroad Co., supra; Schofield v. Railway Co., supra.

We think that the undisputed evidence contained in the present record shows that the deceased was guilty of an act of negligence¹, which directly contributed to his death. The judgment of the circuit court is therefore reversed, and the case is remanded, with directions to grant: a new trial.

1 As published in 28 N. E. 911.