Great Northern Ry. Co. v. Taulbee

MATHEWS, Circuit Judge. Appellee’s intestate, Russell L. Taulbee, was killed in a collision between appellant’s locomotive and an automobile driven by Taulbee at a point where appellant’s railroad crosses the public highway at or near a station called Wiota, in Valley county, Mont. As administrator of Taulbee’s estate, appellee, a citizen of Montana, brought this action to recover damages of appellant in the sum of $50,000, alleging that Taulbee’s death was caused by appel- • lant’s negligence. The action was commenced in a state court of Montana, but, on petition of appellant, a citizen of Minnesota, it was removed to and tried in the District Court of the United States. Appellee’s complaint alleges that appellant negligently (1) caused Taulbee’s view of its railroad track to be so obstructed that he could not see appellant’s locomotive as it approached the crossing, (2) failed to place a flagman or signalman at the crossing, or to install and maintain there an automatic gong, bell, or other signal or device, to notify Taulbee of the approach of [21] appellant’s locomotive, (3) failed to sound the whistle and bell of its locomotive as it approached the crossing, and (4) ran its locomotive at an excessive and dangerous rate of speed; and that these negligent acts caused the collision. Appellant’s answer denies these allegations and alleges that the collision was caused by Taulbee’s own negligence. As a second defense, the answer alleges that Taulbee was guilty of contributory negligence in failing to stop, look, or listen for approaching trains before driving his automobile onto the crossing. At the close of all the evidence appellant moved the court for a directed verdict in its favor, on the grounds, among others: (1) That the acts of negligence charged in the complaint had not been proved, (2) that the evidence showed the collision to have been caused by Taulbee’s own negligence, and (3) that it showed Taulbee to have been guilty of contributory negligence. The motion was denied. The jury returned a verdict in appellee’s favor for $16,500. Judgment was entered accordingly. This appeal followed. Appellant assigns as error the denial of its motion for a directed verdict. Ap-pellee says this ruling was not excepted to and is, therefore, not reviewable. True, the bill of exceptions does not state, in direct and positive language, that appellant excepted to the court’s ruling, but it does show presentation of appellant’s motion and, immediately thereafter, the following: “The Court: Motion is denied. Exception noted.” This form of expression is objectionable and should not have been used. If appellant did, in fact, except to the ruling, the ‘bill should have so stated, instead of merely stating that an exception was “noted.” If appellant did not, in fact, except to the ruling, then there was no exception, and none should have been “noted.” In a federal court, a litigant must take his own exceptions. The court cannot take them for him or dispense with the taking of them. A federal court cannot properly “note” an exception to a ruling unless the litigant against whom the ruling was made has, in fact, excepted to it. Since the court has in this case “noted” an exception to the denial of appellant’s motion for a directed verdict, it should be presumed, not that the court acted improperly, but that the exception thus “noted” was, in fact, taken. Indulging this presumption, we hold, notwithstanding the inapt language of the bill, that the ruling complained of is properly before us for review. Compare Long v. Atlantic Coast Line R. Co. (C.C.A.4) 238 F. 919, 922; Routzahn v. Petroleum Iron Works Co. (C.C.A.6) 56 F.(2d) 938, 939; Little v. United States (C.C.A.10) 73 F.(2d) 861, 864. The evidence establishes, without conflict or dispute, the following facts: At the crossing where the collision occurred, appellant’s railroad runs approximately east and' west. The highway runs approximately north and south. Besides its main line track, appellant has two other tracks running parallel to its main line. One, called the north passing track, crosses the highway at a point 49.25 feet north of the main line crossing.1 Another, called the south passing track, crosses the highway at a point 16.2 feet south of the main line crossing. About 390 feet east of the highway, between the main line track and the north passing track, there is, or was at the time of the collision, a building used by appellant as a depot. Between the highway and the depot, the ground between the main line track and the north passing track, though not a public highway, was used by the public, with appellant’s knowledge and consent, as a roadway leading to and from the depot; the depot being otherwise inaccessible to the public. On the north side of its main line track, about 90 feet west of the highway, appellant has a water tank, the upper part of which is cylindrical in form. The lower part, or base, is of octagonal shape, is boarded up on all sides, and has the appearance of a solid structure. The tank has a total height of about 30 feet and a width or diameter of about 22 feet. The south edge of the tank is 11.68 feet from the center of the main line track. Traveling south on the highway toward the main line crossing, one’s view of the track west of the crossing is obstructed to some extent by the water tank just described. Thus, from a point in the center of the highway 30 feet north of the center of [22] the main line crossing, one driving south on the highway has an unobstructed view of only 160.9 feet of the main line track west of the crossing. From a point 25 feet north of the crossing, his view of the main line track west of the crossing is unobstructed for a distance of 184.5 feet. From a point 20 feet north of the crossing, his view is unobstructed for a distance of 236.2 feet. From a point 15 feet north of the crossing, his view is unobstructed for a distance of 444.1 feet.2 Prior to the time of the collision, ap‘pellant had placed some freight cars on its south passing track. The freight cars were there at the time of the collision, but, being on the south passing track, they could not and did not obstruct the view of the main line track by one approaching the crossing from the north. Wiota is not a city or town. It is merely a railroad station. The crossing in question is a “country crossing.” Appellant has never stationed a flagman or signalman there, nor has it constructed or maintained an automatic gong, bell, or other automatic signal to warn travelers on the highway of the approach of its locomotives or trains. It has at all times maintained two upright posts, one a few feet east of the highway and north of the north passing track, and the other a few feet west of the highway and south of the south passing track; each bearing the usual pair of cross-arms, indicating a railroad crossing. Taulbee was familiar with the crossing- On the morning of April 16, 1934, Taulbee, accompanied by three other persons, drove his automobile south on the above-mentioned highway, crossed the north passing track, turned off the highway to his left, and drove east, between the north passing track and the main line track, to a point about halfway between the highway and the depot. There Taulbee discharged his passengers. He then turned his automobile round and drove west, back to the highway, re-entering it at a point about 20 feet north of the main line crossing. From that point he drove south on the highway, without stopping, until he reached the crossing. There his automobile was struck by the locomotive of an eastbound train on appellant’s main line track, and he was instantly killed. This happened in clear daylight at about 7:05 o’clock a. m. From the time it re-entered the highway until it was struck by the locomotive, Taulbee’s automobile was traveling at a speed of between 6 and 7 miles an hour, which is to say, between 8.8 and 10.27 feet a second. The locomotive was traveling at a speed of between 55 and 60 miles an hour, which is to say, between 80.67 and 88 feet a second.' Demonstrably, therefore, when Taulbee’s automobile was 20 feet from the crossing, the locomotive was within 200 feet thereof and was in plain view of Taulbee. If he did not see it, it was because he did not look. His view of it was wholly unobstructed. If he had looked, he could have seen the locomotive and could have stopped his automobile in time to avoid the collision. Failing to do so, he was guilty of negligence. Compare Baltimore & Ohio R. R. v. Goodman, 275 U.S. 66, 69, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645; Pokora v. Wabash Ry. Co., 292 U.S. 98, 102, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. Whether or not appellant also was negligent, or whether its negligence, if any, concurred with Taulbee’s in causing the collision, it is unnecessary to decide. Taul-bee’s negligence, if not the sole cause, was at least a proximate cause of the collision. Whether it was the sole cause, or was a concurrent cause amounting to contributory negligence only, is immaterial. In either case, recovery is barred. Appellant’s motion for a directed verdict should have been granted. Judgment reversed. Footnotes [1] This distance is from center to center of the tracks referred to. Between the south rail of the north passing track •and the north rail of the main line track, the distance is 44.55 feet. [2] All these distances are from the cen ter of the main line crossing.