McGhee v. White

TAFT, Circuit Judge (after stating the facts). It is contended on behalf of the plaintiffs in error that the uncontradicted evidence shows that Kennedy attempted, after seeing the freight train coming, to cross in advance of it. If this were true, it would have been the duty of the court below to charge the jury to return a verdict for the receivers. It is true that Bertha Caldwell is the only witness who testifies that she had in her sight Green Kennedy as he approached the crossing all the time until he was struck, and that she says that he saw the train, and attempted to get over before it, and whipped up his horses to do so.. This is at variance with the statement of Holly Meux, who was in the wagon with Green Kennedy, and who says that they went slowly to the track. It is at variance also with the probabilities, for the evidence quite clearly establishes that Green Kennedy could not see the engine coming east until he was within 20 feet of the track, and until the engine was within 120 feet of the crossing. Miss Caldwell’s story is that Kennedy, when 20 feet from the track with a locomotive rushing on him at the rate of 20 miles an hour and only 120 feet away, tried to cross in front of the engine with a mule team. The proof is that Kennedy’s mule was stepping upon the track when the engine struck him. It is very improbable that, if Kennedy had seen the train coming, he would have attempted to cross when so far from the track that he could not reach it with his wagon wheels before the coming of the train. The presumption of fact, and of law, too, would be against the existence of such wanton and reckless negligence, and the plaintiff was entitled to have the jury weigh the credibility, of Miss Caldwell’s evidence in the light of the circumstances. If the jury found that Kennedy did not wantonly risk the danger, as Miss Caldwell testifies, then the only other explanation of the accident is that Kennedy did not look to see the train as it came. This is supported by Meux’s statement that he hallooed to Kennedy to look out when he saw the train. The question which we have to decide is whether, if he did not look, he was necessarily guilty of contributory negligence. We think that the circumstances were such as to make this question one for the jury. The case is governed by the decision of this court in Railway Co. v. Farra (handed down Feb. 5, 1895) 66 Fed. 496, and by the decision of the supreme court in Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679. The work train had passed over the crossing not more than one and a half minutes before Kennedy was struck, and he had good reason to believe, therefore, that another train was not following within so short a time and distance. The shortness of the time between the two trains is quite satisfactorily shown by a calculation based on ,the time it took Kennedy to reach the track from Mrs. 505 Caldwell’s house, which he left as soon as the work train had passed. If Kennedy’s team went at B miles an hour, and the train at 21 miles an hour, and they reached the crossing at the same time, Kennedy went in that distance but 40 yards, while the freight train must have gone seven times as fast, or 280 yards. This would indicate a distance of not more than a sixth or a seventh of a mile between the two trains, running at 20 miles an hour. This is very much less than the usual distance between trains running in the same direction, and is most dangerous. Kennedy might, therefore, reasonably presume that, in the 40 yards he had to go to reach the track, another train would not pass the crossing. At least, this circumstance prevents us from holding as a matter of law that his failure to look was contributory negligence. It required the submission of the issue to the jury. In French v. Railroad Co., 116 Mass. 537, the plaintiffs evidence tended to show that she was driving with care, and in approaching a railroad crossing saw a -train pass, and saw no flagman, and received no warning that another car was coming. At a point 46 feet from the crossing she could have seen 46 feet in the direction from which the car came. At 30 feet from the crossing she could have seen the track for more than half a mile, but she did not look in that direction, and gave as a reason that she did not suppose that one train would follow another so closely. She was struck by some cars which were detached from the train that had passed, and which, without warning, followed the train over the crossing. The supreme judicial court of Massachusetts held that -whether she was careless in failing to look up the track at the points near the crossing where it was possible was a question for the jury to determine under the peculiar circumstances of the case. We reach the same conclusion in this case. This is a stronger case than that of Railway Co. v. Ives, and a stronger case than that of Railway Co. v. Farra, already decided in this court. The case of Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85, is not in conflict. There the foreman of a section gang, with 10 years’ experience on a railway, in expectation of a coming freight train had placed his hand car on a siding. The train came from the west, and made a double flying switch at the station. After the first section had passed, the foreman, who was standing 4 or 5 feet from the track talking with one of his men, walked hastily on to the track without looking, and was struck by the rear section of the train, which was moving very slowly along the track. When he started to cross the track the approaching section was not 25 or 30 feet from him. It was held that he was guilty of contributory negligence as a matter of law, and the verdict directed for the defendant was sustained by the supreme court. The fact that the man was a section boss, well acquainted with the customs of the railroad company, and therefore charged with the knowledge that such a flying switch was possible or probable, made it his dnty necessarily to look both wavs upon the track before stepping across it. The case is a very different one from the one at bar, in that what caused the death there was something which the person 506 killed had reason to expect, whereas here the proximity of the two trains on the same track following each other was not only unusual, but was attended with much danger to the persons on both trains. Error is assigned to the action of the court in excluding an exclamation of the witness Bertha Caldwell, when she saw Kennedy driving upon the track. She testified that she said to her mother, “That man is driving his team onto the track; why don’t he stop?” It does not seem to us that this evidence was very material, in any aspect of the case. It only showed that she was looking at Kennedy, but did not show where he was looking. The exclamation was quite consistent with his not seeing the train, and we do not think that its exclusion, even if erroneous, was material error. The judgment of the court below is affirmed.