Franchina v. Chicago, B. & Q. R.

ADAMS, Circuit Judge (after stating the facts as above). The rule governing the action of a trial court on a motion for an instructed verdict has been variously stated in the following cases: Southern [464] Pacific Co. v. Pool, 160 U. S. 438, 440, 16 Sup. Ct. 338, 40 L. Ed. 485; Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 659, 21 Sup. Ct. 275, 45 L. Ed. 361; Speer v. Board of County Com’rs, 32 C. C. A. 101, 88 Fed. 749; Chicago G. W. Ry. Co. v. Price, 97 Fed. 423, 38 C. C. A. 239, 243. [1] In any phase of the rule announced in these cases, a conflict-of a substantial character in the evidence bearing upon a material issue forbids summary action by the court, and necessitates a submission of the issue to the jury. [2] The issue of fact tendered by the plaintiff and accepted by 'the defendant was whether the defendant gave any warning either by bell, whistle, or otherwise of the approach of its train which ran upon and killed the deceased. Whether any such warning was given was therefore a material and decisive question of fact in the case. Three witnesses,' who stood close by the track as the train approached and who were apparently in a position to hear any signal if it were given, testified that they heard nothing of the kind; and one testified that his attention was attracted to the engineer, and noticed that he was looking backward in the direction of St. Paul, instead of in front, and that he not only did not hear any such signal, but that none was in fact given. The contention is that the testimony of these witnesses was negative in its character, and of n<j ¡probative- force as against the affirmative testimony of the witnesses for the defendant who testified that the bell was rung and the whistle blown. Attention is called to the cases of Chicago & N. W. Ry. Co. v. Andrews, 64 C. C. A. 399, 130 Fed. 65, Rich v. Chicago, M. & St. P. Ry. Co., 78 C. C. A. 663, 149 Fed. 79, and Chicago, R. I. & P. Ry. Co. v. Stepp, 90 C. C. A. 431, 164 Fed. 785, 22 L. R. A. (N. S.) 350, and cases there cited, in support of this contention; but we think those cases are inapplicable .to the facts of this case. In all of them distinction is carefully drawn between testimony of a witness who was not in a situation to hear the signals if they had been given and one who was in such situation or whose attention was at the time specially directed to the facts and circumstances of the case. In our last utterance on the subject, found in the Stepp Case (supra), we said: , “Again, if a-witness situated so be could bear the signals, and of such experience that be would have been likely to notice them if they bad been given, testifies that be did not bear them, the credibility of bis evidence is for the jury, unless there is proof that his attention at the time was absorbed in some other matter. Finally, if the attention of a witness is especially directed to the train and its signals, and at the time a distinct impression is made upon his mind that the signals are not given, his testimony is in every particular as trustworthy, .though negative, as would be the evidence of another witness similarly situated affirming that the signals were given.” The proof in this case as detailed in the statement tends to show that three men of experience standing in close proximity to the train as it advanced toward deceased, who might have heard any signal if it had been given, and whose attention does not appear to have been absorbed on any other subject, testified that they did not hear the ringing of any bell or the sounding of any whistle or the caution [465] ary warning of any boss or anybody else as the train came along. One of these witnesses bad bis attention specially called to the action of the engineer of the train, and lie testified not only that he did not hear any bell rung or whistle sounded, but that no such signal was in fact given. This evidence was substantial in its character and in sharp conflict with that of defendant on a material issue, and was clearly for the jury to weigh and consider in reaching a verdict in the case. Some argument was made at the bar in support of the ruling of the trial court that tlie deceased was guilty of such contributory negligence as defeated plaintiff’s action, but that was an affirmative defense, and should have been pleaded if the defendant had deemed it available. It was not only not pleaded but no issue of that kind was tried below, or no instruction asked or given on the subject. Hence we cannot now give it any consideration. The learned trial judge disposed of the case on the sole ground that there was no substantial evidence of a failure to give the signals referred to. In this we think he erred. The judgment must be reversed, and the cause remanded to the court below, with directions to grant a new trial.