Work v. Chicago, M. & St. P. Ry. Co.

105 F. 874, 45 C.C.A. 101, 1901 U.S. App. LEXIS 3913

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 16, 1901
• Docket: No. 686
• Status: Published

Opinions

JENKINS, Circuit Judge,

after the foregoing statement of the case, delivered the opinion of the court.

Without considering the objection raised to the declaration, and assuming it to be good, the three counts charge the railway company with negligence (1) in carelessly running, managing, and controlling its locomotive engine, and neglecting to keep a competent flagman at the crossing to warn plaintiff of the approach of the train while attempting to pass over; (2) in carelessly running, managing, and controlling the engine and neglecting to ring its bell; (3)1 •the same as the first, with the addition that the company allowed the flagman to leave the crossing, so that he did not give warning when he knew plaintiff was attempting to pass over the crossing, but allowed and invited him to drive across when the train was approaching, and prevented him from leaving the crossing by stopping his .horses, so that the plaintiff was compelled to remain thereon until •struck,, etc. With a possible exception, it is difficult for us to find in the evidence any neglect of duty upon the part of the railway company. The crossing was in the outskirts of the city, remote from business and residences; an open prairie, treeless, and, with the exception of a. solitary lime house, houseless; there was no need of gates, no., strenuous necessity, as in the crowded thoroughfares of a great city, for a prompt'passage: Only five-travelers gathered hero during the time of the approach and passage of the two trains. It is not correct to say that under such circumstances the failure of the railway company to employ two men at the crossing — one at the semaphore and one at the crossing — was a failure in duty. So to hold would impose a degree of care wholly unwarranted by the surroundings. Nor was there negligence in the management of the train. It approached with no immoderate speed, the whistle of the engine was diligently sounded, and its bell was rung, and, when danger appeared to be imminent, the train was promptly stopped. So far as the evidence discloses, a competent flagman was stationed at the crossing, and upon this occasion, with a possible exception, to be noted, diligently discharged his duty. He was at the crossing with his flag as the coach train proceeded southeasterly, giving warning to all travelers upon the highway. Immediately upon the passing of the coach train, as became his duty, he ran to turn the semaphore, giving notice to the passenger train, then coming, of a clear track. There is possible dispute among the four witnesses for the plaintiff whether before or at the time he started for the semaphore he waved his flag and gave warning to those about to cross. A careful scrutiny of the evidence satisfies us that he gave such warning. The two witnesses who were upon the north side of the street positively so assert. The two men in front of Work deny; one, however, in a qualified way. These men were in haste to cross, and seemed to have given but little attention to their surroundings upon the passing of the coach train. Work saw and heard nothing. Possibly, in this state of the evidence, notwithstanding it was all produced by the plaintiff, the case should have been sent to the jury if the sole issue was the negligence of the company and its servants. We are satisfied, however, assuming negligence of the flagman, that the conduct of the plaintiff was the producing cause of this injury. If he had the right to assume, from the fact that the two men in front of him started to cross, that the flagman had given the proper signal to cross, still he was not absolved from the watchfulness and care imposed upon one in a place of danger. He would seem to have had no comprehension of the situation, as he was not aware of the presence of the flagman, and first saw him when the latter reached the west side of the street to turn the semaphore. Work was charged with the duty, which was constant upon him until he had safely crossed, to look and to listen. When he reached the middle track, the approaching train which caused the injury was 1,200 feet away, the shrill whistle of the engine being repeatedly sounded, and its bell being rung. It is incomprehensible that in the due and vigilant exercise of his senses in a place of danger he should not have heard these signals when every other witness heard them. He would seem to have followed mechanically the team in front of him, apparently giving no attention except to his team, — "seeing my horses did not go up on the cattle in front of me.” Had he been observing, he could have seen the flagman running down the track from the semaphore, waving his flag in warning of danger; but he does not appear to have noticed him until he saw him in front of his horses waving the flag in their faces. The canopy top obscured his vision along the tracks, and to enable him to see it was necessary that he should project his head beyond the obstruction. This fact imposed upon him the greater care and vigilance. Had he listened and had he looked while still upon the middle track, and in a place where he was safe from the coming train, he could have heard and seen its approach, and have avoided the injury. Beyond all this, the evidence satisfactorily discloses to us that he was on that middle track at the time the flagman confronted him with his flag endeavoring to stop the horses and calling on him to back. He had all the warning that could possibly be given him before he had gone upon the northerly track. He had only to stop, or at most to back his team slightly, and he was safe. But either willfully or in negligent ignorance of his surroundings he entered into altercation with the flagman who had stopped his horses, called upon the flagman to, let him pass, and, upon the refusal of the flagman so to do, took time to look to the west, and, seeing no train, again demanded of the flagman that he get out of the way, and, the flagman failing to comply, looked to the east, and saw the coming train within 150 feet of him. Cursing the flagman, and demanding that he be allowed to pass, he shouted to his team, and attempted to cross in front of the train. Had he obeyed the flagman, and taken noté of the warning, he would have been safe. We can conceive of no excuse for his conduct. It certainly does not comport with the care which the law demands of one attempting to cross a place of danger. We perceive no failure of duty on the part of the railway company or its servants which should impose liability, unless, indeed, railway companies are to be held as guarantors of the safety of all travelers over crossings. We are satisfied that, had the case been submitted to the jury, and a verdict rendered for the plaintiff, it would have been the clear duty of the court to have set aside the verdict; and in such cases it is proper to instruct the jury to find for the defendant. Pleasants v. Fant, 22 Wall. 122, 22 L. Ed. 780; Bowditch v. City of Boston, 101 U. S. 18, 25 L. Ed. 980; Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U. S. 671, 15 Sup. Ct. 718, 39 L. Ed. 853.