ILLINOIS CENT. R. CO. fl. DAVIDSON.
and was the primary and controlling cause of the accident. For these reasons, without considering the question of the danger being open and apparent, and the hazard being assumed by decedent, the decree is reversed, and the cause remanded to the circuit court, with directions to enter a decree in favor of the appellant.
ILLINOIS CENT. R. CO. v. DAVIDSON. (CirCUit Court of Apveals, Seventh Circuit. November 27, 1894.) No. 179.
CARRIERS OF PASSENGERS-CONTRIBUTORY
N EGLIGENCE-INSTRUCTIONS. A passenger who unnecessarily and negligently exposes himself to danger whue alighting from a train is guilty of contributory negligence, even though he does not know of the dangers to which he is exposed.
In Error to the Circuit Court of the United States for the North· ern District of Illinois. A.ction on the case of Wilbur F. Davidson against the illinois Central Railroad Company. Plaintiff obtained judgment. Defendant brings error.
This is an action brought by Wilbur F. Davidson, the defendant in error and plaintiff below, against the Illinois Central Railroad Company, to recover damages for a personal injury to the plaintiff, the result of an accident happening upon defendant's road in the city of Chicago, on February 27, 1893. The plaintiff was a citizen of Michigan, and resided at Port Huron, in that state. He was engaged in the business of selling on commission various kinds of electrical apparatus for the General Electric Company of New York. In the latter part of February, 1893, he came to Chicago, with a Mr. Annesley, for the purpose of showing him a certain electric plant in .active operation, of the kind sold by plaintiff, situated at Hyde Park, in Chicago, near the line of the defendant's railroad. Mr. Annesley was an ,expert for another company, who wished to buy an apparatus. On arriving at Chicago, Davidson, the plaintiff, arranged with John L. Martin, a friend of his, residing in Chicago, and engaged in the same business, to go with plaintiff and Annesley to Hyde Park, to examine this plant. They all embarked at Van Buren street on a suburban train belonging to the defendant at about 5:45 o'clock on the evening of February 27th, and reached Hyde Park station at 6:10 p. m. The accident happened after the plaintiff and his party had left the car at Hyde Park. The railroad company, pursuant to an ordinance of the city, had, shortly previous to this time, been engaged in raising its tracks ,at this point, of which they had had theretofore six in use. The four most easterly of these had been raised to a height of nineteen feet above the city datum, by substantial earth embankments. Trains were running on all of these four tracks. The road ran at this point north and south. The most westerly of these four tracks was the regular southbound suburban track, and over which the plaintiff, passed. The next most westerly track was the north-bound suburban track. The third track, counting from the west, was for south-bound through passenger and freight trains, and the most easterly track was for north-bound through passenger and freight trains. 'l'he two other tracks lying west of thesefour had not been raised. and were not then being used. A platform, 230 feet long, had been provided by the company for the use of passengers on the west side of the track over which the plaintiff passed, leading down north by a pair ot stone stairs in' () Fifty-Third street. This platform and stairs were built and Intended, for the use ot passengers landing at Hyde Park from these suburban trains. There was no platform on the east side of the track intended
,plapk\p,.g, placed behyeen;" the dl1ferwas a an inctine leadingdowD for 'stl'eett for the purpose of 'CIl1'l'1ing bagge;geto :and from the, throngh tI,'liinS.:, The- eVl4f!nce ofplaintitr, ' however, ,shQwedthat" people ,Of tblt ,tracks were in ,the habit of off on that living on the side and crOllsjng, ,tile othe", tracks, and 110D;le, of the evidence tended to show there Were stairs nof'far'distant on that 'side, where passengers descended to the street. This was denied by the witnesses for the defendant. On the arrival of the train at Fifty-Third street, about dark, Mr. Davidson and his friends got off on the east side, and crossed over track No.2, and started to walk the planking between that track and No.3. For some cause, not explained, Martin il,lld Annesley got ot! a little sooner than sight tbem. He says,aftll'"alighting, there were people 'between them and him, and he' could not seE! them; that he stepped out of the car on the platform a,t' the north end, and looked to the right and left, and did not see them, 'arid that a trainman, or person in uniform thllthe, t90k for a trainman, standing" ,igb.t opposjte to him on the pla:UQrm ot th.eneJlit ear, seeiD,g him, plaintiff., said, "This way," or "Down side/'by whichplaJntit! ,understooq the man to mean that his'frJ.en(ls had gone that way; he saw other ,people getting ot! there, and that he got' off upon the ground, looked up a'na. down to see WlUl no coming, and then. over, one ,track upon the planking between two tracks,-the first one he canie to; tb.at he looked up, aildsaw people going north, and among them, his two fl:iends,and that he walked rapillly,Jalong in that'dil:ection; that there was no platform there on 'that side, but: only a board or plank walk, on a Ie-vel with the other t,racks; that he walked' a short distance, when a freight traip came up from the north, on his right side, and that a little after he felfne had been hit, and lost consciousnegg. The! train that' strl1ckhim, however, was not the freight trainwb'ich he saw going south, but a suburban passenger train from the south oll:rtrackNo. 2,west ofbim on his' immediate left, and which just 'He was knocked down, receiving a Qlow' on the head, and other Injnries,andwas taken by his friends to a drug store near by, and from there! back to the city;that night. The evidence shows that these railroad tracks 'were 13 feet apart ,from center to centei."; that the width ot the sUburban coaches, as well as the freight mrs, wasB feet 8 inches, outside measurements; thattwo,.such cars, passing each':other, would leave a space between them of 4 feet 4 inches; that the planking between the tracks, upon whIch the plaintiff was walking while injured, consisted. of five l"foot planks, laid parallel with the tracks; that the distance between the east rail of the north-bound snburban track and the west rail of the southbound through 'trac1l:, on which the freight train 'passed, was 7 feet 11 inches; that there was a space of about 9 inches between the edge of the planking and the rail on either side; and that the planking was laid on .about the same level with the evidence of defendant tended also to show that this planking laid between the tracks was placed there for the convenience of passengers arriving on the north-bound suburban and the southbound through tracks In getting from their respective trains to the platform and stone steps on the west side of all the tracks, and leading down through the stone abutment to Fifty-Third street. These are the main facts, so far as seems necessary to state them for the broper understanding of the points of law.
Sidney F. Andrews (James Fentress,of counsel), for plaintiff in error. Edward R. ,Woodle, for defendant in error. Bef()re WOODS and JENKINS, Circuit Judges, and BUNN, Distriet J
BUNN, District were ,a great manJ'
(after stating the facts as above). There talqmby thedefendant to the intro-
ILLINOIS CENT. R:CO.
duction of evidence upon the trial, as well as to the charge of the court, and to refusals to give special instructions, but it will be unnecessary to notice them all. One of the principal contentions on the part of the plaintiff in error is that the case was submitted upon issues not raised by the pleadings, and that under the allegations of the declaration there could be no recovery upon the evidence submitted. But we think there is no substantial variance between the pleadings and proofs which should prevent a recovery. The negligence on the part of the company, if there was any, consisting in constructing its tracks, and planking between, and running trains in such a way that the cars of. passing trains would extend upon either side over the edge of the planking, so that in running their trains, M was done in this case, one on each side of the walk or planking, it left a space of only four feet and four inches between passing trains for passengers to walk upon, so that a passenger, to avoid being struck, must take care to keep near to the center of the planking; also in permitting or directing passengers to .alight upon the east side of the track in the nighttime, where there was no depot or platform provided for them, and where trains were frequently passing each way, so that the passenger, unless very cautious, would be in great danger of being hit by a passing- train. The evidence in this case showed that not only the plain" 1'1', but Annesley and Martin, were struck by one or other of thuse two trains, which were passing at the time they were endeavoring to make their way between the tracks. The plaintiff was seriously injured, the other two but slightly. But the company was not misled by any variance between the pleadings and proofs. In fact, we think the declaration, containing as it does, the following and other similar allegations, is all that it need be to admit the evidence:
"And it then and there became and was the duty of the said defendant to provide reasonably safe means at its said Hyde Park station, whereby the said plaintiff could leave tne train and premises of the said defendant without unnecessary or unreasonable hazard or injury to his person; but the said defendant, disregarding its duty in that behalf, carelessly, negligently, and willfully, then and there, at, to wit, its said Hyde Park station, provided means for leaving its said train and premises that, as the said defendant well knew, were grossly unsafe and inadequate in this, to wit: It then and there provided a narrow platform of the width, to Wit, of four feet, between two of the tracks of its said railway, and close to, to wit, within one foot of, the rails thereof, on either side of said platform, for its passengers and the said plaintiff to go and walk upon in leaving the train aforesaid, at, to wit, its said Hyde Park station, which platform was of insufficient width to permit passengers to be or walk thereon with reasonable safety from injury from passing trains, and was so constructed that the defendant's engines and trains running upon its two tracks last mentioned, in passing by the said platform on either side thereof, extended, to Wit, six inches over the said platform, leaving an unreasonably insufficient and narrow space for the defendant's passengers upon said platform between such trains when so passing each other, of but, to Wit, three feet in width; and also permitted and caused its servants in charge of its said trains to manage and drive the same in approaching and passing the said platform at frequent intervals and at a rapid and dangerous rate of speed, and by reason of the said grossly and inadequate and unsafe means so afforded its passengers and the plaintiff, as aforesaid, the said defendant then and there exposed its
and the SlIldpla!ntUr upon the .said platform to great and imminent dangerot being i!ltrtickand injured."
If the planking between the tracks was intended for the use of passengers to walk betwe'en trains passing in opposite directions, as was done in this case, it seems quite evident that the construction was faulty, or that the running of trains extending over the planking, while passengers were walking on it, was gross negligence. But the contention of the company was that this planking was not intended for any such use, ,but was for the convenience of passengers in crossing the tracks when there were no trains running, in order to reach the platform and steps on the west side, built expressly for the use of passengers in leaving these trains. For such a purpose there was no evidence tending to show that the planking was not entirely adequate. It was only when passengers attempted to walk lengthwise on the planking while trains were coming along that the danger· arose. Another exception and assignment of error relates to the evidence upon the matter of damages. The declaration did not containan allegation of special damage, and the plaintiff on the trial was permitted to testify, against the defendant's objection, that his earnings from profits arising from commissions on sales in his regular employment had amounted for the two or three previous years to the sum of $25,000 annuallY,and for 1891 to the sum of $31,000. It is contended that this was error, as no special damages were alleged. This is a question adsing under the law of pleading in Illinois, where the decisions seem to be in some conflict, and we have not deemed it necessary to determine it in view of the fact that we find the next assignment of error to be considered conclusive against the judgment, and as, if there should be a. new trial, it will be competent for the plaintiff to ask to be allowed to amend his declaration in this regard, if he s:Q.ould be advised that such a course were necessary or prudent. Some special instructions were asked on the trial by defendant's counsel on the question of contributory negligence on the part of the plaintiff, which the court refused to give, but in its general charge gave the following, which wa.s the only instruction given on that subject, and to which proper exception was taken, to wit:
"(2) The next question would be whether the plaintiff himself was guilty of contributory negligence, for, although it might be the duty of the railroad company to prevent passengers from alighting on the east side of their cars at this particular place, and under the dlllIlgers that surround such a discharge of their passengers, yet, if the plaintiff knew of the danger, and in the face of that knowledge got down on that side of the car, and met with this lnjury,the railroad company would not be liable. For that purpose you have a right to look into the plaintiff's knOWledge on that subject. Had he traveled over that road,-over. that suburban line, and gotten off at that place before? Is there any evidence that he had the. dangers of that place .inmind? ls there any evidence that he knew, when he was gettingot't onthe.east side of the car, he was getting off on the tracks instead of on the platform that was proviued for If you can find any evidence in the record to· that point, it is your duty to look at it, and if you find that the plaintiff, at the time that he alighted, knew, or had good reason to
ILLINOIS CENT. R. CO. 11. DAVIDSON.
know from his past experience,-if he had any past experience at that place, -of the dangers that menaced him there, then he is not entitled to recover; but if he did not have such experience, and did not have such knowledge, although other passengers may have had,-although the man whom he accompanied may have had,-he woulu be, nevertheless, free from the charge of contributory negligence, and would be entitled to recover, the other element of negligence on the part of the railroad company being made out."
This instruction is wrong in itself and wrong in not covering the entire ground which such an instruction should cover. By this instruction the whole question of contributory negligence was made to turn upon a matter of fact of which there had been no dispute in the testimony, to wit, whether or not the plaintiff had been there before, got off at. the same place, and become acquainted with its dangers. The plaintiff testified he had never been there before, and there was no evidence to the contrary, and the jury were told that they should look into the evidence, and, if they found that the plaintiff, at the time that he alighted, knew or had good reason to know from his past experience,-if he had any past experience at that place,-of the dangers that menaced him there, then he would not be entitled to recover; but if he did not have such experience, and did not have such knowledge, although others may have had,although the men whom he accompanied may have had,-he would be, nevertheless, free from the charge of contributory negligence, and would be entitled to recover, the other element of negligence on the part of the railroad company being made out. As there was no dispute about the plaintiff ever having been there before, or ever having had any past experience at that place of the dangers that menaced him ·there, this instruction, withdrawing as it did from the jury all consideration of contributory negligence founded upon other considerations, was equivalent to directing a finding in favor of the plaintiff upon the question of contributory negligence, and submit· ting the case to the jury upon the question of the defendant's negli· gence alone. The jury was nowhere told that if the want of or· dinary care and prudence upon the plaintiff's part contributed mao terially to produce the injury, he could not recover. Of course, the plaintiff's previous knowledge or want of knowledge of the place was a material circumstance to be considered by the jury in determining the question of contributory negligence, but it was not the only circumstance to be considered. Whether he had had any past experience of the dangers of the situation or not, he was bound to exercise his senses. He must use his eyes and ears, and exer· cise the care and prudence which a man of ordinary care and prudence would be expected to use in the same circumstances to avoid accident. If the question had been submitted to them, who can say that the jury might not have found that the plaintiff did not exercise ordinary care in making inquiry as to the proper place of alighting from the train, or that he was guilty of negligence in not keeping a more constant lookout for approaching trains while he was walking between the tracks upon the planking. None of these questions, or that of contributory negligence generally arising from any cause, were submitted to the jury. On the question of the plaintiff's negligence, the following special v.64l!'.no.3-20
vol. 64. refused.' by .
asked forbt'defendallt'El instructions the court, and exceptions duly :
"(4) Where II- proper landing plaJeeds provided, and the passenger knows, or would, by the exercise of. ordinary: care, have ascertained, its locality, he Ilhould'make !lis exit at the place sa provided; and If,·,In attempting to alight elsewhere, he unnecessalll.ly and. negligently exposes hImself to danger, aJ;ld Is therElby injured, this injUJ:Y:isth El result of his own act, and he can· not recover damages therefor frori:lthe, railroad company. (5) If you believe from the evidence that the plail1tiffkneW, or would, by the exercise of ordinary care, have !,mown, that the planldbg between tracks 2 and 3, waa not of .a, reasonably safe width for p,im to walk or remain upon spould another train, IJass by upon track 2, and you further find from the evidence that he voluntarily and unnecessarily ,remaiiied on such planking, and by reason 'thereof was injured as complailied:, of, then the plaintiff is not entitled to recover, and your verdict must be for the defendant."
,We see no good objection to,either of these re,quests, and, as coyered the same ground, we think nothing in the general it was error not to give'l;heJ;ll. ,For these reasons the is re.versed, and the cause rem\l:nded to the circuit court for a new trial, or for such proceedings as proper.
SHELLABARGER v. OLIVER.
(Circuit Court, D. Kansas, Second Division.
BEFORE TRIAL. , 4-Ct,QOIW'
November 21, 1894.)
March 9, 1892 (27 Stat. 7), providing that, in addition to the mode' ;of .taking deposition!': in tile federal' courts, depqsitions may be taken "In the, mode prescribe'd by the laws of the state in which the coUl"ts:are held," only adopts the state practice as to 'the manner of taking, and does not, in connection with Gen.. St. Kan. par. 4442, llrOyiding that "either may, commence taking testimony by deposition at any time after service on defendant," authorize the taking of defendant's deposition before trial, in the absen<;e of any of the grounds therefot prescribed by Rev. St. U. S. §§ 863, 866.
,At Law. Action by Isaao, Shellabarger against Mark J. Oliver. Heard on rule to show cause why defendant should not be attached for contempt in refusing to testify before an officer authorized to take depositions. Rule discharged. Ohas. S. Cairns and T. W. Sargeant, for plaintiff. O'Bryan & Gordon and W. E.. Stanley, for defendant. FOSTER, District Judge. The plaintiff brought an action at law against the defendant to recover on a promissory note, and at the same time took out an attachment against defendant's property on the ground prescribed by the statutes of Kansas. Mter making service of summons in the case, he proceeded at once to take the deposition of the defendant in the manner provided by the statutes of Kansas, and the practice recognized by the courts of the state. This practice is not materially different from the usual mode of taking depositions de bene under the laws of the United States (section 863). Notice of the t1me and place of taking the deposition was duly given, but no reason was given, or required in the state