Morgan v. Northern Pac. Ry. Co.

ROSS, Circuit Judge (after stating the facts as above). [1] Manifestly, the action of the court below was, and only could have been, based on the view that the deceased was, according to the uncontra-dicted evidence, guilty of such contributory negligence as, under the law, precluded any recovery on account of his death. The question therefore is: Did the evidence show without conflict that the deceased was guilty of contributory negligence? We feel bound to hold, as did the court below, that it does. Without conflict it shows that he went upon the roadbed between the tracks on which a train was liable to come at any time, and walked along it in the direction from which the train did come, the light of the engine of which both of his two companions saw, and which he should have seen, and doubtless would have seen, at the same time if he had been looking ahead as they were. And even when told by his companion, Mrs. Doty, that he had better get off the track, he made no effort in response to the warning to do so, so far as appears from the testimony of either of the two witnesses at the time present. It is true they both say in their testimony that the deceased did not have time to get out of the way; yet it is obvious, we think, from the testimony of those witnesses, that their conclusion in that respect is erroneous. Mrs. Doty, who is corroborated by her daughter, states that when she saw the light she knew it was a moving light, and that she then said to the deceased, “Mr. Morgan, you had better get off the track,’’ and that her daughter turned around in the path she was walking, and said to her, “Ma, you know the train don’t come down this track.” Surely this afforded the deceased ample time within which to step beyond the rails and danger. It is altogether probable that he acted on the daughter’s statement that the trains did not come down that track; but he had no right to do so. Which of the tracks would or should be used for its various trains was, of course, a matter for the exclusive determination of the railroad company. Besides, the deceased should not have gone upon the roadbed at all; nor was there any need for him to have done so. The girl was walking on a beaten path outside of the roadbed, and testified, in effect, that she was afraid to walk between the rails. And so the deceased should have been — -particularly on such a night as the one in question. At first, according to the testimony, he did not do so, having walked in the space between the two roadbeds, and where, it is probable, he would have been safe from the passing train; but unfortunately he made the fatal mistake of going from that place to the middle of the west track, where he met his death from the oncoming train. [2] One who at any time voluntarily places himself in such a dangerous place as between the rails of a railroad is certainly chargeable by the law with the duty of looking and listening for trains that may be coming from either direction, which duty was greatly enhanced on the occasion in question, vdien, according to the evidence, the night was very dark and a strong wind was blowing. In a similar case before this court a few years ago (Northern Pacific Railway Co. v. Jones, 144 Fed. 47, 75 C. C. A. 205), we said: •‘A general license to the public to walk upon a railroad track does not mean that the railroad company is to be the insurer of the safety of all per [454] sons who avail themselves of that permission. While the license adds to the responsibilities of the railroad company, and imposes upon it a greater burden of care, it does not affect the duty that rests upon the licensee to take all due precautions to avoid injury to himself. If the negligence of the defendant in error was one of the proximate causes of the injury which he sustained, if it directly contributed to the unfortunate result, he cannot recover, even though the negligence of the plaintiff in error contributed to it; and the rule is the same whether the injured person be a trespasser on the railroad track or a licensee.” Many cases are there referred to, to which reference need not be again here made. For the reasons stated, the judgment is affirmed.