Stelk v. McNulta

JENKINS, Circuit Judge, after tlie foregoing statement of the case, delivered the opinion of the court. We might properly disregard the stipulations of the parties with respect to facts not found by ihe master or the court below, and made subsequent to the decree. We sit here to review the rulings of the court below, not to pass judgment upon stipulations of parties made subsequent to such rulings, and not properly preserved in a bill of exceptions or verified as part of the record by the certificate of the [142] judge. We deem it proper to make these observations upon the practice pursued, although we have concluded in this case to waive the irregularity, and to consider these stipulations. The sole question here is whether, with respect to this accident, negligence can properly be imputed to the motorman in charge of the car. The principle of law which should control judgment of his conduct, under the facts disclosed, cannot be doubtful. In the case of Railroad Co. v. Prewitt, 59 Kan. 734, 54 Pac. 1067, to which we are referred, the driver of a locomotive in open daylight saw an object upon the railway track of the company, but supposed it to be a weed or piece of paper. Observing it carefully, so soon as he discovered the object to be a human being he did all in hip power to stop his train, but without avail, and the child was killed. The court ruled that the duty of checking the speed of the train was not imposed upon, the driver of a locomotive upon seeing an object upon the track which he reasonably believed to be inanimate, and not dangerous to the passage of the train, but that the duty arose immediately upon the discovery that the object was a human being, or an object endangering the passage of the train, and reversed the judgment of the court below, which had held the duty to be imposed upon the driver of a locomotive to check the speed of his train immediately upon discovering an object ahead, whatever that object might be. We cannot doubt the correctness of this decision of the supreme court of Kansas, when applied to the passage of trains upon the right of way of the company; for in such case the law is settled that the company owes no duty to trespassers upon its tracks except not to run them down willfully or maliciously. Railway Co. v. Phillips’ Adm’r, 24 U. S. App. 489, 12 C. C. A. 618, 64 Fed. 823; Sheehan v. Railway Co., 46 U. S. App. 498, 22 C. C. A. 121, 76 Fed. 201. The locomotive driver has the right to assume that the object, if animate, will leave the track upon hearing the coming train. It is quite a different matter, however, where railway trains, whether propelled by steam or electricity, pass along the crowded thoroughfares of a populous city. The care to be exercised is relative, and must be proportionate to the dangers reasonably to be apprehended. Here the locus in quo was in the outskirts of the city of Chicago, but was sparsely populated; there being, according to the facts found and stipulated, no houses on the westerly side of the railway, and along the easterly side there was a sidewalk of some sort and a few houses'. It was an open prairie. The track of the railway may have been laid upon ground that was platted as a street, but there was no roadway for the passage of teams, and there was a ditch on either side of the railway. There were no street lights, as is usual in a city. The motorman, on reaching the .crest of the incline, saw, at a distance of 65 feet an object upon the track, which both he and' the messenger boy standing with him upon the platform of the car took to be a dog. He immediately applied the brake, checking the speed of the car, and sounded the gong to arouse the supposed animal, and cause it to leave the track. It is stipulated that the motorman had no reason to expect a human being to be upon the track at that place or at that time. The record does not explain the presence of the man, and we are unable to ascer [143] tain with what purpose or for what object a human being should be in that situation. The stipulation of fact is certainly reasonable that the motorman bad no reason to expect the presence of a human being upon the track. We do not think, therefore, that the duty was imposed upon him, upon perceiving an object, to bring his car to a stop to discover the nature of the object. Tie did no less than his duty required of him to cheek the speed of the car and sound his gong, and so soon as he perceived that the object did not respond to the signal he reversed to bring the car to a standstill. Upon a level, under such circumstances, the car could have been stopped within 40 feet, but, it being upon a downward grade, it could not be stopped within that distance. We cannot perceive that the motorman was lacking in any degree in the exercise of that prudence and care which, under the circumstances, the law imposed upon him. The decree will be affirmed.