CAHILl, V. CHICAGO, M. & ST. P. RY. CO.
lead? We do not design to assert the proposition of fact stated as veritable truth. Such is not the province of the court. 'We say that the evidence of the plaintiff, if credited, tends to establish those facts; and upon those facts there are inferences to be drawn which it is not the duty of the court to indulge, but which lie peculiarly within the province of the jury. Upon the case made by the plaintiff, reasonable men might honestly and fairly differ upon the qnestion whether he exercised, on that dark and foggy night, and under the circumstances surrounding him, that care which an ordinarily prudent man would exercise under like circumstances. Such being the case, the question was one peculiarly within the province of a jury to determine. We are of opinion that the court below erred in withdrawing the case from the jury. The judgment will be affirmed as to the Chicago & Northern Pacific Railroad Company. In all other respects it will be reversed, and the case remanded, with directions to award a new trial as against the other defenchnts to the record.
CAHILL v. CHICAGO, M. & ST. P. RY. CO. (Circuit Court of Appeals, Seventh Circuit. No. 270. May 7, 1896.)
RAII,ROAD CQ)IPANIES-ACCIDENTS AT CROSSINGS-PLEADING.
An averment that a path by which plaintiff was crossing the tracks was well known, and generally and publicly used, is a sufficient averment, in the absence of special demurrer, of knowledge on the part of the railroad company of the existence of the path. An averment that the company did "negligently, willfully, recklessly, wantonly, and carelessly" run its engine and cars upon her, etc., is a good charge of negligent injury. Jenkins, Circuit Judge, dissenting.
SAME-IMPLIED LICENSE TO CROSS TRACKS.
At a place where several thousands of persons cross the switching tracks of a railroad daily, and where no effort is made to stop them, by fencing, posting notices, or otherwise, persons attempting to cross are not mere trespassers; and the company is bound, not merely to refrain from wanton or willful injury after discovering them, but to anticipate their probable presence, and its cars with reasonable precautions, and a proper regard to their safety. H is a question of fact in each case whether there has been, with the acquiescence of the railroad company, such a public and customary use of the alleged crossing as to justify the presence upon the track of the person injured. In an action for personal injuries sustained in crossing a railroad track, the court directed a verdict for defendant on the sole ground that, notwithstanding the custom of many people to pass that way daily, the place of the accident was not a "crossing" in respect to which the company could be charged with negligence. Held, that where, on appeal, this ruling was found erroneous, the better practice required that the judgment be reversed, and a new trial directed, without considering a defense of contributory negligence which was Dot considered by the court below.
SAME-QUESTION OF FACT.
REVIEW ON ERROR-QUESTIONS No'r CONSIDERED BELOW.
. 74 FEDERAL REPORTER.
Lancaster v. Colllns,6 Sup. Ct. 33, 115 U. S. 222, distinguished. Circuit Judge, dissenting.
TRIAL-PEREMPTORY INSTRUCTION.....DISOBEDIENCE OF JURORS.
The refusal of a juror to obey a peremptory Instruction to find a verdict fof- one of t.he parthis fs reprehensible in the highest' tlegree, and may sUbject him, and those who encourage him therein, to punishment for contempt. In such case, it seems, the court would have authOl:ity to direct the entry of the verdict without the assent of the jury; and the court should not accept a stipulation of record, permitting a judgment of dismissal to be entered, to 'have the same effect as a verdict under direction of the court, with the right of exception thereto.
In Error to the Circuit Court of the United States for the Northern Division oUhe NortheruDistrict ofIllinois. Richard Prendergast andJ. E. Deakin, for plaintiff in error. Charles B. Keeler, for defellilant in errol'. Before WOODS and JENKINS. Circuit Judges, and GROSSuOl)t District Judge. WOODS, Circuit Judge. This is an action on the case for personal injury suffered by Maria Cahill, the plaintiff in error, who, when attempting, afoot, to cross a switching track of the defendant in error at the Union Stock Yards, in Chicago, was struck and run over by a backing engine, whereby she lost both feet, and suffered other serious bodily injuries. 'rhe action was commenced in the Cook county circuit court, and transferred thence to the court below, where additional counts to the declaration were filed, in the first of which it is charged that on the 25th day of November, 1892, the defendant was operating and moving a locomotive, with two freight cars attached thereto, upon a certain railroad track, across which lay and ran awell·known and generally and. publicly used path and passageway for pedestrians, in which path the plaintiff was walking, as she and the public were accustomed to do, and while she ,was so walking, and was exercising. due and proper care, the defendant's servants 'fdid so negligently, willfully,recklessly, wantonly, and carelessly move and run the said engine and cars towards and against plaintiff as thereby to throw plaintiff to the ground." This is a good charge of. negligent injury. The. that the path was well known and publicly used, in the absence of a special demurrer, or a motion to make more specific, is equivalent to an averment of notice to the railroad company of the existence of the path. While the place of the accident, it is c6nceded, was not a highway, or other established public crossing, yet for many years great numbers, counting thousands daily, of men, women, boys, and girls, were accustomed to cross there, morning and evening, when going to and returning from their work. Of this custom the defendant in error, and other railroad companies possessing and using adjacent tracks, were not ignorant; and their consent to it, if not admitted, was fairly inferable. No earnest efforts were made, nor efficient means shown to have been employed, to cause people to desist from passing that way, though a few rods of fence along the eastside of Packers avenue, it is apparent, would have been sufficient for the purpose. If such a fence could not have been erected without the consent of the
CAHILL V. CHICAGO, M. & ST. P. RY. CO.
Union Stock-Yards Company, it is a fair inference, from the community of interests between that company and its lessees, the railroad companies, that the consent could have been had for the asking. Besides, one resolute man at each end of the path, if not able to turn the passing people another way, could have given such distinct and constant warning as to make trespassers of all who persisted in crossing. For that purpose, perhaps, a painted sign, "Keep Off the 'l'racks," at either end of the path, would have been sufficient, but no such signs were there. The court below directed a verdict for the defendant; putting its ruling, as the entire charge shows, on the sale ground that the place where the injury was Ruffered, notwithstanding the custom of large numbers to pass that way daily, "was not to be considered a crossing" in respect to which the company could be charged with negligence, and that the only ground on which the company could be liable for the injury was wanton and willful conduct of its servants, of which there was no evidence. This ruling was erroneous. While it is well settled that, under ordinary circumstances, a railroad company owes no duty to a trespasser upon its tracks, it is also true that a trespasser may not be wantonly or willfully run down, and when he is perceived to be in a position of danger, from which he is not likely to escape by his own exertions, there arises on the part of the company a duty to use all reasonable diligence not to harm him. Railway Co. v. Tartt, 12 C. C. A. 618, 64 Fed. 823, and 24 U. S. App. 489. That much is due to a decent regard for human life and limb, and, on the same principle, it must be that in places on the tracks where people are accustomed to come and go frequently in considerable numbers, and where by reason of such custom their presence upon the track is probable, and ought to be anticipated, those in charge of passing trains must use reasonable precautions to avoid injury, even to those who, in a strict sense, might be called trespassers. But, when a railroad company consents to the customary or frequent passing of people over its tracks, they cannot be deemed trespassers, and the duty is as clear as the necessity that locomotives and cars be moved with proper regard for their safety. The adjudged cases on the subject are numerous. A leading one is Barry v. Railroad Co., 92 N. Y. 289, 292, where there had been long acquiescence of the company in the crossing of its track by pedestrians, which amounted to a license and permission to all persons to cross at a point where there was only a private right to cross; and it was held that the circumstances imposed a duty upon the company, in respect to persons using the crossing, "to exercise reasonable care in the movement of its trains." This case is reaffirmed in Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539, where it was held "that the defendant was not absolutely bound to ring a bell or blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under the circumstances." In Taylor v. Canal Co., 113 Pa. St. 162, 8 At!. 43, after reference to the Barry Case the supreme court of Pennsylvania says:
"The principle, clearly Settled by the foregoing and many other cases that might be cited, is that when a railroad company has for years, without ob-
74 FEDERAL REPORTER.
jection, permittcd the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care. toward those using the crossing; alld whether, in a given case, such reasonable care has been exor not, is ordinarily a question for the jury, under all the evidence."
In Hath v. Union Depot Co. (Wash.) 43 Pac. 641, where there is a discriminating review of cases, it is held that a company's acquiescence in the daily use of its track for travel afoot by 50 to 100 people imposes on the company a duty of ordinary diligence to avoid injury to persons using the track. In Railway Co. v. Dick (Ky.) 15 S. W. 665, involving the same question, it was said that "undoubtedly the appellee ought not to be regarded as a trespasser upon the yard of the company," because he ",vas crossing the tracks by the permission of the company. It had, by its acquiescence in the work hands crossing them for a long time, licensed them to do so. It was permitting such use, and it had, therefore, by its own conduct, imposed upon itself a precautionary duty, as to the appellee, when he might be crossing its tracks in going from and returning to his work." To the same effect are Railway Co. v. Wymore (Neb.) 58 N. W. 1120; Ward v. SQuthern Pac. Co. (Or.) 36 Pac. 166. See, also, Townley v. Railway Co., 53 Wis. 626, 11 N. W. 55; Whalen v.Railway Co., 75 Wis. 654, 44 N. W. 849; Conley v. Railway Co. (Ky.) 12 S. W. 764; Railway Co. v. Crosnoe, 72 'rex. 79, 10 S. "V. 342; Railway Co. v. Meigs, 74 Ga. 857; Southerland v. Railroad Co., 106 N. C. 101, 11 S. E. 189; Frick v. Railway Co., 5 Mo. App. 435; _Palmer v. Railway Co., 112 Ind. 252, 14 N. E. 70. It is, of course, a question of fact, in each case, whether there has been, with the consent or acquiescence of the railroad company in possession, such a public and customary use of the supposed crossing as to justify the presence upon the track of the person injured. Taylor v. Canal Co., supra; Chenery v. Railroad Co., 160 Mass. 211, 35 N. E. 554. ·We are asked, however, to affirm the judgment on the ground of contributory negligence on the part of the plaintiff in error. It is within our power to examine the evidence, and to affirm the judgment on that ground, if in accordance with the rule laid down in Hayes v. Railroad Co. (just decided by this court) 74 Fed. 270, we should find the proof to be without conflict, and convincing; but we do not deem it obligatory upon us, in this instance, to enter upon that inquiry. The record shows affirmatively that the circuit court based its decision upon the proposition which we have considered, and if, after declaring that untenable, we should affirm the judgment on another ground, our action would be primary, and not, as is contemplated by a writ of error, merely a review. If the record showed simply a peremptory instruction for a verdict one way or the other, it would be necessary to consider whether or not, upon any view of the entire evidence, the instruction was right; but when the ground of the decision is disclosed, as in such cases it ought perhaps alwa,Ys to be, and especially when there is, or can reasonably be, dispute about the facts, or about the inferences of fact deducible from the evidence, we think it the better practice that the review on writ of error should not extend beyond the question considered below. Ordinarily a correct decision will be affirmed, though pred-
CHICAGO, M. & ST. P. RY. CO.
icated upon an unsound reason; but here there were two distinct issues, each of which, if found for the defendant, was determinative of the case: First. Was the place where the injury occurred a passageway of the character alleged in the declaration '! Of that issue the plaintiff in error had the burden of proof, and the court, deeming the evidence insufficient, withdrew the question from the jury. Second. Was the plaintiff in error guilty of contributory negligl:>nce? Of that issue the defendant in error had the burden of proof, and the court made no ruling and expressed no opinion about it. ·When an item of evidence is admitted or rejected, the question is a single one; and if the ruling be right it will be upheld, regardless of any mistaken reason upon which it was based. Aud so of any single ruling whatever which may occur in the progress of a cause,-it must be disposed of on appeal upon its merits. But it is manifestly a different proposition when the court has erroneously directed judgment against the plaintiff in the action because of the supposed lack of evidence to support the deelaration, and we are asked to atTirm the judgment on the ground that an affirmative defense has been established, in respect to which the court expressed no opinion. There can be no question of the proposition found in Lancaster v. Collins, 115 U. S. 222, 227, 6 Sup. Ct. 33, that "no judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the parties against whom the ruling was made." Such were all the cases cited in the dissenting opinion. In none of them was there, or could there have been, a dispute about the facts on which an affirmance was ordered. But in this case not even the physical facts are in all material respects certain. The ultimate question, which must be determined by inference,-whether or not the plaintiff in error, when hurt, was exercising due and ordinary care,-is in dispute; and what the conclusion ought to be does not seem so clear as to require, or perhaps to justify, an affirmance of the judgment on the ground of contributory fault. It is therefore deemed best now to say nothing more definite on the subject. While we have treated the judgment in this case as if it had been rendered upon a verdict of the jury delivered in accordance with the court's peremptory direction, the fact is not literally so. '1'he record shows that the jurors, at the conclusion of the charge, refused to render a verdict for the defendant, severally stating that they could not conscientiously do so, whereupon the court said: "Very well. You may retire to your room, and return with such a verdict as you may find." '1'11e jury accordingly retired, but were recalled into court at a later hour, and directed again to return a verdict for the defendant; but, one juror still holding out, counsel for the plaintiff was permitted to stipulate of record that a judgment of dismissal might be entered, to have the same force and effect, and none other, than a verdict for the defendant under the direction of the court, but that plaintiff should be considered as excepting to such direetion, and also to such order of dismissal, and thereupon the court ordered such dismissal, and the plaintiff therev.74F.no.2-19
upon excepted to such ruling. The stipulation should not have been accepted. The authority and duty of a judge to direct a verdict for one party or the other, when, in his opinion, the state of the evidence requires it, is beyond dispute; and it is not for jurors to disobey, nor for attorneys to object, except in the orderly way necessary to save the right to prosecute a writ of error. The conduct of the juror in this instance was in the highest degree reprehensible, and might well have subjected him, and any who encouraged him to persist in his course, to punishment for contempt. His conduct was in violation of law, subversive of authority, and obstructive of the orderly administration of justice. In fact, by his course he put in jeopardy the interests which he assumed to protect, because it is only by treating the case as if the verdict directed had been returned that we have been able to review the judgment and to order a new trial. We deem it proper to observe here that it is not essential that there be a written verdict signed by jurors or by a foreman, and we have no doubt that, in cases where the court thinks it right to do so, it may announce its conclusion in the presence of the jury and of the parties or their representatives, and direct the entry of a verdict without asking the formal assent of the jury. Until a case has been submitted to the jury for its decision upon disputed facts, the authority of the court, for all the purposes of the trial, is, at every step, necessarily absolute; and its ruling upon every proposition, including the question whether, upon the evidence, the case is one for the jury, must be conclusive until, upon writ of error, it shall be set aside. That remedy is provided by law, and presumably will be effective and adequate, if there be just ground for invoking it. Certainly the obstinacy of a conceited juror is not likely to prove a wholesome substitute. The judgment is reversed and the case remanded, with instructions to grant a new trial. JENKINS, Circuit Judge (dissenting). The conrt upholds the right of the plaintiff in error to recover under the first of the additional counts filed at the trial, and upon the evidence shown by the record, if the jury should find, upon such evidence, that the railway company was guilty of negligence. This is the only count of the declaration upon which judgment can be rested. This count charges that the railway company operated and moved a locomotive, with two freight cars attached, upon a certain railroad track, alongside of and over and across which track "lay and ran a well-known and generally and publicly used path and passageway for pedestrians, in which path and passageway plaintiff was then and there walking as she and the public were accustomed therein to walk," and that while she was so walking therein, along the path across the track, the railway company, by its servants, "did so negligently, willfully, recklessly, wantonly, and carelessly" move and run the engine against the plaintiff that she was injured, etc., which injury occurred through the "willful and wanton negligence and conduct of the defendant," to her damage, etc. The accident occurred within the private switching yard and grounds of the railway compauj'. There was no evidence of a public highway, and the most that the evidence
tended to prove was an implied license to cross the private ground and tracks of the railway company. This count of the declaration fails, however, to plead any such license, in that it is not therein averred that the use of the path was with the knowledge and consent of the company. Burg v. Railway Co., 90 Iowa, 106, 112, 57 N. W. 680. This count was drafted with an imperfect comprehension of, or without regard to, the law of negligence. There is no such thing as "willful negligence." Negligence excludes the idea of willfulness. Negligence is the omission of a duty, not the commission of a willful act. Railway Co. v. Tartt, 24 U. S. App. 48B, 12 C. C. A. 618, 620, and 64 Fed. 823. These "vituperative adjectives" impart no force and give no effect to the declaration. If the count can be said to embrace a charge that the railroad company, through its servants, willfully ran its cars against the plaintiff in error, it is nough to say that the record is absolutely wanting in any evidence to support such charge, but proves to the contrary. If it can be upheld to charge negligence in the management of the train, or in the failure to discharge some duty owing to the plaintiff in error, because of an implied license to cross the track, it is sufficient to say that it neither specifies the duty, nor declares wherein there was failure to discharge the duty. The count may properly be characterized as a collection of "vituperative adjectives." The second additional count pleads an act of negligence subsequent to the act charged in the other counts, distinct therefrom, resulting in further injury, and constituting another cause of action. Tbis count was filed more than two years subsequent to the injury, and to it the Illinois statute of limitations was pleaded. The action on that count was barred. Phelps v. Railway Co., 94 Ill. 557; Railway Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877. 2. We have held in Elevator Co. v. Lippert, 24 U. S. App. 176, 11 C. C. A. 521, and 63 Fed. 942, that a licensee who enters upon the premises of another by permission only, without allurement, inducement, or invitation held out to him by the owner or occupant, cannot recover damages for injury caused by obstructions or excavations. He acts at his own risk, and enjoys the license subject to its attendant perils. Thus, in Bolch v. Smith, 31 Law J. Exch. 201, where workmen were permitted to use a place as a way, on which revolving machinery had been erected, it was ruled that the right so to use the place was only the right not to be treated as a trespasser, and that there was no obligation to fence the machinery, and no liability for insufficiently fencing it. Whilf', however, the licensee takes the privilege subject to the perils arising from the condition of the premises, and from the nature of the business as there ordinarily carried on, the licensor must refrain from doing any further act to endanger the safety of the person exercising the license. 'Phe proposition is thus stated in Gallagher v. Humphrey, 6 Law T. (N. S.) 684, by Wrightman, J.:
"It appears to me that such permission as is here urged may be snbject to the qualification that the person giving it shall not be liable for injuries to persons using the way, arising from the ordinary state of things, or of the ordinary nature of the business carried on; but that Is distinguishable from
the case of injuries wholly arising from the negligence of that person's servant."
There must not be, as stated by Ohief Justice Oockburn in the same case, superadded negligence, in addition to existing dangers. With this explanation, and possible limitation, I think the case of Railway 00. v. 'l'artt, 24 U. S. App. 489, 12 O. O. A. 618, and 64 Fed. 823, decided by this court, correctly states the law. The difference between that case and the one in hand is this: There the implied licensee was walking along the track; here she was attempting to cross the track There the implied license was exercised but by few persons; here, by a multitude daily,-morning and evening. Whether, under the circumstances here existing, a duty was imposed upon the railway company to operate its trains otherwise than in accordance with the ordinary method of operation before and at the time of the license; whether the license was not subject to such ordinary method of operation; whether, by reason of the license, a duty was imposed upon the railway company to give warning of the approach of a train to the way so granted, such as is by statute required at a crossing of a public highway; whether any other duty was imposed than that of active watchfulness to avoid injury to those upon or about to cross the track upon the licensed way; and whether the duty of warning arises until it is manifest that one is about to cross the track,-are questions upon which the courts are not at agreement, and which, as I think, are not presented by the pleadings, and, for reasons hereinafter stated, are questions not necessary to be considered at this time. The majority opinion would infer a license here because "no earnest efforts were made, nor efficient means shown to have been employed, to cause people to desist from passing that way, though a few rods of fence along the east side of Packers avenue, it is apparent, would have been sufficient for the purpose." This railway company had no right to erect fences upon the land of another. The property where it is said a fence should have been erected belonged to the Union Stock-Yards Oompany. If there \vere legal or moral duty resting upon anyone in this respect, it was a duty devolving upon the Union Stock-Yards Oompany, and not upon the defendant in error, ,which had no control over the premises. It was not possible or feasible for the railway company to have inclosed its own tracks, part of the network of rails, to keep out the multitude. Nor do I see in what manner the five or six thousand persons daily crossing the track could have been prevented from so doing, except by the maintenance of a constabulary force. The law does not impose upon the owner such a duty towards trespassers, nor does his failure to employ lJhysical force to prevent trespass operate as an implied license. It certainly was not neglect of duty to omit, nor can a license be inferred from failure, to erect a fence upon the land of another. I am not impressed with the correctness of the doctrine of vicarious punishment, applied to mundane affairs. 3. Upon her own evidence, and upon the testimony of her witnesses, it is clear, as matter of law, that this injury happened through the negligence of the plaintiff in error. The locality was one of great danger. To go over the course, she was obliged to cross a network.
CAHILL V. CHICAGO, M. & ST. P, RY. CO.
of tracks, about 15 in number, diverging through the switch yard, and converging at the crossing of Packers avenue. She had traveled this course, morning and evening, for two .rears. She knew and understood all the dangers of that very dangerous locality. She states:
"These engines switelJing bad: and forth would pull cars out, and shove them in, on tiw different tracks. In going tllere, from west of the hog <:IlUte to Paekers avenue, you were lia hIe at any time, morning or evening, to meet several engines and trains woddng in there. That was a dail,V oecurrenee, day and nig'lJt, during the t\\'o y(;ars I WPIlt there. In attempting to cross th('se tracks, I eould not tdl before I got there on wlw t particular traek I would meet SWitch engines and train,." Could only tell by looking up and down the track, east and west, before I stepped on it."
Upon the occasion in question she left Transit avenue at or near the overhead hog chute, crossed a railroad track, and turned into the irregultlr space intervening between the north tmck of the Chieago, Mil waukee & St. Paul Hail way Com pany and the trade to the north of it, owned by some other (;(nnpany. She walked along that space to a point 15 01' 2U feet west of the hnv switch stand, and then turned towards the south to cr'oss the network of tracl's. At that point the width of this irregular space was 10 6 /10 feet, and, walking along the space, she was from 4 to 5 feet distant from the north rail of the track upon which she met her injury. At SOllIe little distance east of the switch she had met- the 8witch engine which was pushing cars to the east. As she turned to cr08S the track, and when within five feet of it, she to the east, lind thought the engine was standing still. 'Without stopping or again looking, she went upon the track, walking slowly, and as she stepped upon it she was struck by the engine coming westward. This is her relation of the facts, corroborated by some of her ,yitnesses. The witness Bohringer, who testified her behalf, states that she looked towards the engine when she was 15 or 20 feet east of the switch, and was about to look again as she stepped upon the track and was 8t1'1lCk. 'J'he switeh engine did not proceed eastwa::-d more than 12;"; to 150 feet from the place of the aeddent. 'l'he witnesses vary upon the question, some stating the to be 35 feet. lJpOn stopping, the engine was immediately reversed, and cOlllmenced to hack, and, upon reaehing the place of theinjury,hadattained a speed of not mOI'e than from four to six miles an hour. The fireman, sitting in hb-: cab window as the engine proceeded westerly, saw the plaintiff, Hnd so soon a3 she turned, indicating a purpose to go upon the trade, gave the proper signal, and yelled to the ell gineel', and every p08sible effort was then made to stop the engine. If only tIre duty of active watchfulness was imposed upon tl1e raihvay company before a purpose to cross the track was manifested, that duty was The operatives of the train had l'ight to assnrne that one would not attempt to cross the track without looking and listening for a coming train, and would stop (Hail road Co. v. :Hiller, 25 :'IIich. 279),as much right to assume that the girl, from the common in8tinct of self-preservation, '''oald so govern her conduct, as a tTa vder upon the public highway has the ri;>;lrt to rdy UIHIl the gidng oj' signals at a crossing. If no duty was cast upon the r<J.ilway company until it was apparent that the gil'! was about to attempt the
crossing of the track, the duty then devolving was fully performed. The engine was brought to a full stop within the distance of its length. The girl, struck by the tender, was found between the driving wheels of the locomotive. There can be no doubt that the girl was mistaken in supposing that the engine was standing still, if she looked, as she states, when she turned to go upon the track. If she looked, as Bohringer relates, when she was 15 or 20 feet east of the switch, it is probable that the engine was at that moment not in motion. At a speed of 6 miles an hour, the engine was traveling not more than 3 feet to her 1 foot. So that when she turned in her course to go upon the track, and was 5 feet distant therefrom, the engine could not have been more than 15 feet from the place of the injury. It is inconceivable that then, seeing the engine, she should have indulged the mistake that it was not in motion. The look which she gave was a passing glance. She did not listen, and it was her duty to listen as well as to look. Attempting to cross this network of tracks constantly occupied by switching engines going in both directions, in this place of extreme danger,-which may appropriately be termed the "jaws of death,"-her duty was not fulfilled by the giving of a casual glance. It was her duty to look carefully, to listen carefully, and to stop unless the way was clear. Assuming that her narration of facts is the correct one, she was delinquent in duty, in failing to look and to listen and to stop before she ventured to put foot upon the railway track. There was no obstruction to the view. Had she properly used her senses, she could not have failed to see the coming train. It was close upon her. If she mistook the situation, when the exercise of care would have revealed it, her error, and }ts resulting injury, ought not to be visited upon another. If the narrative of the facts by the witness Bohringer be the correct one, and she only looked when 15 to 20 feet east of the switch, she was equally negligent in failing to look and to listen br to stop before she ventured upon the track. That one so fully apprised of the dangers surrounding her should have beru so thoughtless of her own safety can only be explained upon the theory that she had become habituated to, and regardless of, the danger which daily confronted her. However much she may be entitled to our sympathy for her misfortune, the law cannot hold snch conduct to be the exercise of ordinary care, or permit her to recover, without disregarding well-settled principles of law, and without tendering a premium to reckless conduct. Under the circumstances, it was the duty of the trial court to withdraw the case from the jury and to direct a verdict. Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Elliott v. Railway Co., 150 U. S. 245,14 Sup. Ct. 85; Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Nolan v. Railway Co., 91 Wis. 16, 64 N. W. 319. The facts considered were proven by the appellant, and are without contention. The law, applied to the ascert-ained facts, declares her conduct negligent, precluding recovery. There is no inference to be indulged by court or jury, and therefore there was no issue to be submitted to the jury. The court declines to consider this q,uestion of contributory nei-
CAHILL V. CHICAGO, M. & ST. P. BY. CO.
ligence because it appears from the record that the trial court based its direction for a verdict upon another ground, and that, to review the decision upon any other ground than that given for the ruling, the action of this court would be primary, and not in review of something done below. I am constrained to dissent from that conclusion. \Ve are concerned with the correctness of the ruling of the court, not with the reason given for that ruling, except so far as it may guide us to a correct conclusion upon the reason assigned for the ruling. The exception and the assignment of error go to the ruling, not to the reason stated for the ruling. If it is clear that the ruling was right, although the reason assigned for the ruling was wrong, we are not called upon to reverse a judgment founded upon a correct ruling. Our action in affirming a correct ruling rendered upon an erroneous ground would not be, as the court assumes, primary. It would be a review of something done below,-a review of the ruling of the court below. It is conceded that, if no reason were assigned, we should affirm the ruling, if, in any view of the evidence, the ruling was correct. The direction of a verdict brings here, under proper exception and assignment of error, the whole case for review. If it appeared clearly that the direction was right, the ruling should be affirmed, notwithstanding an erroneous reason given for the ruling. If the appellate court, in an instance in which it is authorized to review the entire case, can see that, for any cause, the party appealing ought not to prevail, it is the merest formality, and a useless formality, to reverse because the trial court, adjudging rightly, placed its judgment upon doubtful or erroneous ground. This is so, also, without regard to which party had the burden of proof thereon. The vital question concerns the correctness of the ruling, the whole case considered. All else is formal and inconsequential. If a trial court gives a wrong reason for a correct conclusion, the error is a harmless one, resulting in no injury to the party. We are concerned here not so much with abstract principles or reasons as with injuries resulting to the party from the application of them. In Swager v. Lehman, 63 Wis. 399, 23 N. W. 579, certain testimony was ruled out upon a ground that the supreme court thought not to be valid; but, being admissible upon other ground, it held the ruling correct, and affirmed the judgment. In Brobst v. Brock, 10 Wall. 519, the court observed:
"It would be idle to reverse the judgment, and send the case back for a new trial, if it be certain that the plaintiff cannot recover in the action."
In Barth v. elise, 12 Wall. 400, the court says, citing a number of previous decisions in that tribunal:
"The plaintiffs in error, according to their own showing, had not a shadow of a right to recover in this action against Clise. Conceding, for the purposes of this opinion, that the court below erred in all the particulars complained of, the errors have done them no harm. Opposite rulings could not have helped them. Their case was inherently defective. The defect was incurable, and ihevitably fatal. When such a defect exists, whether it be or be not brought to the attention of the court below, or of this court, by counsel, it is our duty to consider it, and to give it effect."
In Decatur Bank v. St. Louis Bank, 21 Wall. 294, 301, the trial court instructed erroneously upon the effect of one letter as consti·
tuting a guaranty; but another letter in evidence was held by the appellate court to lead to the same result, and therefore the judgment was affirmed, the court observing,"The result is right, although the manner of reaching it may have been wrong." In McLemore v. Bank, 91 D. S. 27, 28, the court said that it was unnecessary to consider whether; in all respects, the charge of the circuit court to the jury was correct, because the record case of the plaintiff to be so fatally defective that the judgment below would not be reversed for instructions, however erroneous. In Lancaster v. Collins, 115 U. S. 222, 227, 6 Sup. Ct. 33, it is said, "No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made." In "Wisner v. Brown, 122 D. S. 214, 7 Sup. Ct. 1156, the court said it was unnecessary to consider the validity of the ground upon which the trial court directed a verdict, because "there was another ground upon which the court of trial might unquestionably have instructed the jury to find a verdict for the defendant." In West v. Camden, 135 U. S. 507, 521, 10 Sup. ot. 838, the court said it was unnecessary to examine the correctness of a certain instruction to the jury, "for, even though that might have been an erroneous instruction, it did no harm to the plaintiff, because he could not recover in any event." In Aerkfetz v. Humphreys, 145 'D. S. 418, 12 Sup. Ct. 835, the court affirmed the judgment, not only upon the ground of the ruling below, but also and mainly upon the ground of want of negligence, which ground the trial court had not passed upon. The distinction sought to be drawn in the majority opinion here would not seem to have been considered by the supreme court to be of force. For the reasons stated I dissent from the judgment of the court.
ST. LOUIS & S., F. R. CO. v. (Circuit Court of Appeals, Eighth Circuit. No. 633.
et al. April 17, 1896.)
.One W., with two companions, purchased tickets at a station of defendant's railroad, about 6 o'clock in the afternoon. The train which they were to take passed the station about midnight, and did not stop unless flagged, but defendant's station agent did not mention the latter filct. ' 'About midnight, the night then being very dark and misty, W. and his companions returned to the station. The agent had then gone to bed, and there were no lights at the station. A bystander volunteered to flag the train, and did so, with a match, but the train ran about 200 feet beyond the platform before stopping, at which point it could not be seen in the darkness. Another bystander then Raid toW. and his compan.. ions that they could go ahead and get on the train, and "V. accordingly started up the tracl;:, The train had begun to back down, and ran over and killed "V. on the track. '.rhe evidence was conflicting as to whether there were any lights on the rear of the train, and whether any signal was given before the train began to back down to the station. 'Upon the trial of an action brought by \V.'s representatives against the railway company, the court instructed the jury that if they believed from the evidence that the defendant's employes operating the train, could, by the. exercise of reasonable care, have avoided killing 'W., notwithstanding
ST. LOUIS & S. F. R. CO. V. WHITTLE.
some negligence on his part, then W.'s negligence would not of itselt prevent the plaintiffs' recovery. 'l'here was no evidence tending to show that any of the men on the train had reason to believe that W. was on the track when the train began to back up. Held that, in the absence of such evidence, the instruction given was erroneous.
Held, further, that the fact'that W. went upon the track, and walked or ran towards the train, without waiting to ascertain whether it would back down to the station, on a dark night, when he could not see the train, and had at least as much reason to suppose it would move back as forward, showed that he was 'guilty of contributory negligence, a conclusion not a1fected by the presumption arising from the instinct of self-preservation, and that the jury should have been instructed to tind for the defendant. Caldwell, Circuit Judge, dissenting.
In Error to the Circuit Court of the United States for the Western District of Arkansas. B. R. Davidson (L. F. Parker was with him on the brief), for plaintiff in error. Ira D. Oglesby (John H. Rogers was with him on the brief), for defendants in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THA1'ER, Circuit Judge. This suit was brought by Bettie Whittle, Charlie Whittle, and Frank Whittle, the defendants in error, against the St. Louis & San Francisco Railway Company, the plaintiff in error, to recover damages on account of the death of 'V. L. Whittle, who was killed at Cameron, in the Indian Territory, on the morning of November 9, 1893, by being run over by one of the defendant company's passenger trains. The deceased, W. L. Whittle, was the husband of Bettie Whittle, one of the defendants in error, and the father of Charlie Whittle and Frank Whittle, the other defendants in error. The material facts on which the decision of the case depends do not admit of any dispute under the testimony preserved in the bill of exceptions, and they are as follows: The deceased, W. L. Whittle, resided with his family about four miles from the town of Cameron, in the Indian Territory. On the afternoon of Kovember 8, 1893, he came to the defendant company's station in said town, in company with John E. Martin, and one Stewart, to take a train for Ft. Smith, Ark. Tickets for the intended trip were purchased of the defendant company's station agent about 5 or 6 o'clock p. m. of that day, but the train on which they expected to take passage was not due at the station from the south until about midnight. The train in question did not stop at Cameron unless it was flagged, but no notice to that effect was given to the deceased when he purchased his ticket. The deceased came to the station with his two companions, above named, a short time before midnight, and was standing on the station platform as the train approached from the south. 'l'he station agent had retired for the night before the train arrived, and there was no one present representing the defendant company to flag the train. For that reason, a bystander on the station platform, who knew that the deceased desired to board the train, lit a match, and waved it as a stop signal, when the engine was about 200 yards distant from the
center. of the station platform. The signal was seen by the engineer, and responded to by two ,short blasts of the whistle, but, owing Ao its speed, the train ran past the station a short distance; so that, when it stopped, the rear end of the rear car was about 200 feet north of the north end of the station. The night was very dark and misty. There were no lights about the station except a dim light in one of tb.'e station windows. When the train came to a halt, one of the bystanders on the station platform remarked to the persons who were intending to board the train, "You can go ahead andget on," or words to that effect'; whereupon Whittle, the deceased, steppeQ down from the platform onto the track over which the train had just passed, and started, up the track to board the train, walking or running for that purpose between the rails. Very soon after the train stopped, the engineer reversed his' engine, for the purpose of ,backing the train down to the station, and enabling those who desired to do so to get aboard. By the backward mOvement of the train, the deCeased was caught on the track, and instantly killed, at a point a little north of the north end of the liitl1tion platfol)lll' The evidence was Gopfiicting as to whether there were or were not lights on the rear end of the train, and as to whether beH was rung, before the train started to back ,up., One of the plaintiff?s witness George W. Noble; who was S) standing; olldthestation' platform 'when the accident occurred, testiftedthllt he;heard the puffing of the engine when the train began to back up. Another witness for the plaintiff, John E.Martin, who wasil. brother-in-law of the deceased, testified, in substance, that ,he had notJelftthe platform when, the accident occurred, and that he' was not aware that' the train had begun.to move either backward or forwa:rd,' 'after it halted' north of the station, until he was made a'ware of the fact that the train was moving backward by the outcry of the deceased when he waSi'unover. Numerous errors have been assigned to the action of the trial c,Ourt; but the view that we have felt ourselves constrained to take will only renderjt necessary to notice two of the alleged errors. At, the instance of the plaintiff below; the circuit court gave, among ,others, the following instruction; and the defendant COIIlpany duly excepted thereto:
'''The court 'further instructs the jUry that 'it is not every negligent act on the part of deceased that amounts to such contributory negligence as would that reason preclude plaintiiI's right to recover. Although the jury may believe from the evidence that the deceased was guilty of some negligence. yet; if the jllry believe from all the evidence that the defendant's employes operating the train by which the deceased was killed could, by the exercise of reasonable care and prudence upon their part, have avoided killing the deceased notWithstanding his negligence, the negligence of the deceased of itself would n?t prevent plaintiffs from in this action,"
This instruction, as applied to the undisputed facts which were proven at the,trial; wasroisleading,and therefore erroneous. There was no evidence· before the jury tending to show that either the engineer, conductor, or any other trainman had any knowledge or reason to believe that the deceased was on the track in the rear of the train when::it began to back up after it had run past the station.
ST. LOUIS & S. F. R. CO. V. WHl'fTLE.
In the absence of such evidence, the rule of law that was invoked by the plaintiffs had no application to the case in hand, and ought not to have been given. An instruction like the one now in question ts very proper, no doubt, in those cases where it appears that a person negligently placed himself in a position of danger, and the fact became known to the alleged wrongdoer in time to have taken certain precautions to avoid injuring him, which were not taken. If an engineer in charge of a train sees a person walking on a railroad track, even at a place where he has no right to walk, he must, nevertheless, make all reasonable efforts to avoid injuring him. '1'he fact that one person is guilty of negligence in placing himself in a dangerous situation does not absolve another person, when the fact becomes known, of the duty to make a reasonable effort to protect him from injury or from the consequences of his own carelessness. This principle is well established in the Law of Negligence, but it has no application except in those instances where the plaintiff's dangerous situation was known to the defendant, and the latter thereafter omitted some reasonable precaution which might have been taken, and which precaution, if taken, would have resulted in preventing the accident. In such cases it is the last omission of duty which the law esteems the proximate cause of the injury, and it accordingly permits a recovery by the injured party notwithstanding his prior negligence. Railway v. Monday, 49 Ark. 257, 4 S. W. 782; Railway CD. v. Cavenesse, 48 Ark. 106, 2 S. W. 505; Shear. & R. Neg. § 99, and cases there cited; Whart. Neg. § 323; Thomp. Neg. 1156. As we have before remarked, there was no testimony in the case at bar which tended to show that the trainmen either knew or suspected that the deceased had placed himself in a position where he might be run over and killed as the train backed up, and, in the absence of such proof, it was erroneous to instruct the jury on that hypothesis. The circuit court further erred, we think, in refusing, upon the testimony contained in this record, to charge the jury as it was requested to do, that the deceased was guilty of contributory negligence, and that there could be no recovery for that reason. The testimony showed without contradiction that the deceased voluntarily placed himself in a position of great dangel', by going upon the track, and walking or running thereon towards the train, without waiting even for a moment to ascertain if it would back down to the station. The night was dark and foggy; so dark in fact, as all the witnesses say, that it was impossible to tell, merely by looking, when the train began to move backward towards the station. If this be so, and if it is also true, as was contended by the plaintiffs below, that there were no lights on the rear end of the train, and insufficient light about the platform, these facts rendered the risks that were assumed by the deceased in walking or running up the track so much the greater. Besides, as the train had actually stopped in obedience to the stop signal, and as the deceased had not been invited or ordered by any of the trainmen or other employes of the railroad company to come forward and get aboard, he must have known that the train was at least as likely to move backward as to move forward, and to do so very soon. '1'he danger to be ap-
prehended, therefore, fliom going on the track under these circumstances, was great and imminent. It has been repeatedly held that a railroad track is itself a warning of danger, and that one who voluntarily goes or walks upon a railroad track without looking to see if a train is approaching when his view is unobstructed is, as a matter of law, guilty of a want of ordinary care, which precludes a recovery for an injury sustained, even though the railroad company itself was guilty of negligence. Such was the rule of law declared by this court, after a full consideration of the subject, in Railway Co. v. Moseley, 12 U. So App. 601, 6 C. C. A. 641, and 57 Fed. 921, and in Railway Co. v. Bennett, 16 C. C. A. 300, 69 Fed. 525. See, also, to the same effect, Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Elliott v. Railroad Co., 150 U. S. 245, 14 Sup. Ct. 85; Bancroft v. Railroad Corp., 97 Mass. 275, 278; McGrath v. Railroad Co., 59 N. Y. 468, 472; Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. E. 741; Mulherrin v. Railroad Co., 81 Pa. St. 366, 375. What shall be said, then, of the conduct of a person who voluntarily steps down on a railroad track from a station platform, and walks thereon towards a standing train that is liable to move backward or forward almost immediately, when it is too dark to see when it begins to move, or in which direction it is moving? It seems obvious to us that one who thus acts is equally as blameworthy as one who walks or drives across a railroad crossing without looking to see if a train is approaching, when he is able to do so. Even if we should concede, therefore,-and we are not disposed to controvert the proposition,-that the defendant company was at fault in not stopping its train opposite to the station, and in not providing sufficient lights about the depot platform, still the fact remains that after the train had passed the station, and the situation was well known to the deceased, he voluntarily placed himself in a dangerous position, which was not known to the trainmen, and, by so doing, directly contributed to his own death. The suggestion made to him or in his presence by the bystander, that he could go ahead and get on the train, was not in express terms, or by any fair legal intendment, a direction to walk up the track between the rails immediately in the rear of the standing train. By thus walking on the track, he incurred, as we think, an unnecessary and an obvious risk; and it admits of no doubt that, but for such act, the disaster would not have happened. It has been suggested, arguendo, that the fact that all men possess the natural instinct of self-preservation constituted in itself some evidence which warranted the jury in finding that Whittle exercised due care, and so the case was properly submitted to the jury. The answer to this suggestion is that the testimony in this case discloses what the deceased did on the occasion of the accident. It shows that he committed an. unnecessary and negligent act, without which the accident would not have occurred. For that reafion there is no room for .presumption or inferences based on the fact that men are generally moved by the instinct of self-preservation. It is doubtless true that a man's actions are usually prompted by a
natural desire to guard against injury to himself; but that this desire is not strong enough, on all occasions, to insure the exercise of reasonable care, is abundantly proven by our everyday experience that men will sometimes commit acts of negligence which imperil their own lives, as well as the lives of others. For these reasons we think that the argument last suggested is entitled, on the facts of this case, to little, if any, weight. While the question of contributory negligence is ordinarily a question for the jury, yet it is a well established rule in the federal courts that when the facts are undisputed, and the proof of contributory negligence is so conclusive that the court would not sustain a contrary finding, it is its duty to direct a verdict for the defendant. No court is required to take the chances of a verdict being rendered whir-h, if rendered, it would deem itself bound to set aside as wholly unsupported by evidence. Moreover, it is an undoubted right of an appellate court to determine, among other things, whether, upon the case as presented by the record, the trial court ought to have granted a peremptory instmction to find a verdict in favor of a particular party to the controversy. Gowen v. Harley, 12 U. S. App. 574, 6 C. C. A. 190, 197, and 56 Fed. 973; Railway Co. v. Moseley, supra; Elliott v. Railroad Co., supra; Schofield v. Railway Co., supra. We think that the undisputed evidence contained in the present record shows that the deceased was guilty of an act of negligence, which directly contributed to his death. The judgment of the circuit court is therefore reversed, and the case is remanded, with directions to grant a new trial. CALDWELL, Circuit Judge (dissenting). Whittle, :YIartin, and Stewart, three plain countrymen, living in the Indian Territory, went to Cameron, a station on the railroad of the defendant com· pany, in that territory, to take the train for Ft. Smith, Ark. It does not appear that Whittle and his companions had any knowledge whatever of railroads or their mode of operation. They purchased tickets, and told the station agent they wanted to take the next passenger train to Ft. Smith, and were informed that it would pass the station about 12 o'clock midnight. The station agent did not acquaint them with the fact that the train did not stop at that station unless it was flagged. A little before midnight, Whittle and his two companions went to the station. It was a very night, and there was no light in the station, or on the platform, or anywhere about the station grounds or tracks. All was darkness. Besides Whittle and his two companions, there were on the station platform two other men, who were not going to take passage on the train, but were there upon other business, namely, Noble and Dr. Murray. The station agent went off to bed, and there was no agent of the company at the station or any place around to flag the train or give any advice or information to Whittle and his com· panions as to how to stop the train, or how or where they should get on after it did stop. When the train was seen approaching, Dr. Murray volunteered to flag it, and did so, with a lighted match. The
train ran past the station a distance of two or three hundred feet, and stopped. It had no lights on the rear end. After it stopped, the whistle was not sounded, the bell was not rung, and no signal was given to indicate which way it was moving. 'fhe train could not be seen after it stopped, by the persons on the platform, nor could its backward movement on the track be heard or seen by them. From the noise made by the escaping steam, which was the only noise heard after the train stopped, Mr. Noble, a druggist and an intelligent man, living in the town, and presumably having some knowledge of the manner in which trains on this road were managed and operated at this station, and certainly more knowledge and experience on the subject than Whittle and hig companions could possibly have, was under the impression that the train would not back up to the platform from the point where it stopped, but would go forward from that point to Ft. Smith; and he says: "I made the remark to them [Whittle and his companions], if they would run, they could get on the train." Acting upon this advice of Mr. Noble, and believing the train would not back up, but was going forward, the three men started in the darkness in the direction of the train, Whittle in the lead, and were immediately lost to view in the darkness. In a brief space of time, 'Whittle gave a cry of anguish or alarm, and was soon found under the train, crushed to death. It turned out that Whittle, in the darkness, had in some manner gotten onto the railroad track; and the train, backing up towards the station, noiselessly, and without lights or signals of any kind, had run over and killed him. Just where he got onto the track, or how long he had been there, no one knows, because, in the darkness, no one could see his movements. There were bales of cotton, railroad ties, timbers, and other obstructions on either side of the track going in the direction of the train, which, in the intense darkness of the night, made it difficult, if not impossible, for anyone to go in anything like a straight line to the train without following the traclc In consequence of these obstructions, the track, at this point, was commonly used by the public in going to and from the station. The plaintiff's testimony establishes the foregoing facts, and they must be accepted by this court as true in determining whether there is sufficient evidence to support the verdict of the jury. The plaintiff's evidence tending to suppor1 it must be taken as true, and the conflicting evidence disregarded, for it is the exclusive province of the jury to pass upon the credibility of the witnesses. The appellate court cannot weigh or balance the evidence. The rule is, therefore, well settled, and has been frequently announced by this court, that when, by giving credit to the plaintiff's evidence, and discrediting that of the defendant, the plaintiff's case is made out, the court cannot withdraw the case from the consideration of the jury, or set aside their verdict. Railway Co. v. Phillips, 13 C. C. A. 315, 66 Fed. 35; Railroad Co. v. Teeter, 27 U. S. App. 316, 11 C. C. A. 332, and 63 Fed. 527; Railroad Co. v. COriger, 12 U. S. App. 240, 5 C. C. A. 411, and 56 Fed. 20; Railway Co. v. Sharp, 27 U. S. App. 334, 11 C. C. A. 337, and 63 Fed. 532. The jury found that the railroad company was guilty of culpable negligence, and that Whittle was
not guilty of contributory negligence, and returned a verdict in favor of the plaintiffs. The majority of this court have set aside the verdict of the jury, upon the ground that Whittle was guilty of such contributory negligence as to preclude his widow and children from recovering for his death. There were present on the station platform, that night, five perand Dr. Murray. sons, namely, Whittle, :Martin, Stewart, Whittle was killed, and, before the trial of the case, Dr. Murray had left the country, and Stewart was not called: as a witness; so that, of those five who alone had any opportunity to know what the sons standing on the station platform saw or heard, Martin and Noble, only, were called as "\vitnesses. Martin testifies in part as follows:
"Q. After the train stopped this side of the depot, the first stoppage, the first time it stopped, I will ask you whether or not there were any signals given of any kind there, either bell or whistle or lanterns, or anything of that kind., A. No, sir; there were not. Q. '.rhere was no whistle? A. No, sir. Q. No bell'! A. NO, sir. Q. And no waving of a lantern or anything of that kind on the train '! A. No, sir. Q. No signals of backing of any kind? A. No, sir. Q, 'Vhen did you first ascertain as a matter ot fact that that train was backing? 'Vhen did you first learn it was backing? A. When it struck Mr. Whittle. Q, When Mr. Whittle holloed, was it? A. Yes,sir. Q. Was the train moving,when you run up and spoke to the engin" eer? A. Yes, sir. Q. 'When could you first see the movinlo: train? A. When I got right even with the train, of course I could tell it was moving back. Q. Could you hear it until it got even with you '! A. No, sir; I never heard the train; it was backing, * * * Q. State whether or lwt you could see. when you were on the platform, where the train was. 'Was there anything to indicate where the train was that you could see? A, I could not see the train when I was on the depot when it stopped. Q. Could you see it when Whittle holloed or yelled '! A. No, sir; I could not. * * * Q. When it started back, you say there was no noise, You could not hear it"until you got along even with the train after you run up there? A. Yes, sir; I got rigp,t at the train before I heard it. Q. Hqw close did you get to it before you could see it? A. 'Well, I was right by the train; the train was running by me when I noticed it."
On cross-examination the same witness testified as follows:
"Q. You tell this jury that you looked to see whether you could see that train or not after it had passed you? A. Yes, sir. Q. You looked to see whether you' could see it or not'! A. Yes, sir, Q. Did you see it? A. No, sir. Q. You didn't see it? A, No, sir, Q. You heard it stop; you heard
the noise cease, and knew it had stopped, did you not? A. Yes, sir; I heard the noise cease, and supposed the train had stopped. * * * Q. And yOIl didn't hear the noise of the train until you got even with it? A. Well, right about the train,"
Mr. Noble testifies:
what was done by these three parties'! I am talking about Stewart, Martin, and Whittlf? A. I made the remark to them, if they would go on now, they could get on the train. Q, What did they do? A. They started, Q. Who was ahead? A. I don't remember. Q. Did they all start? A, That is my recollection. * * * Q. Could you see the rear end of the train when you first heard Whittle hollo '! A. No, sir. * * * Q. After the train stopped, I will ask you if it made any signal of backing; that IS, either by ringing the bell, blowing the whistle, or swinging of any lantern, or anything ot that kind. A. I never saw or heard any. Q, Is your hearing good? A. Yes, sir. * * * Q. Did you know when it stopped'i A. Yes, sir. I could tell about when it stopped. I don't know exactly the time it stopped, but I
"Q, When tlJe train stopped up on the track,-that is, stopped at first,-
could tell ahout. Q. You could tell when the noice ceased? A. Yes. sir. Q. Was that when you made the remark that you can now go ahead and get on 'l A. Yes, sir. * * * Q. Did you hear the moving of the train? A. I don't remember about that, whether I heard the noise of the train or not. Q. But didn:t you look down the road towards the train after it had passed by the depot? A. Yes, sir. Q. And you could not see anything that indicated where the train was? A. No. sir. Q. You could not see the red lights, or did not see them'l A. I did not see them. Q. You say you heard the train puffing. Did you say that it puffed more than once? A. Yes, sIr; exhausted. Q. :VIore than once? A. Yes, sir. Q. How many times did you hear that'l A. Oh, several times. I don't remember how many times. Several times though. Q. 'While you were on the platform? A. Yes, sir. Q. 'Vhat called your attention to that fact, now'l A. My impression was at the time that the train was going this way [towards Ft. Smith], and I made the remark to them, if they would run, they could get on the train. Q. You heard the train moving, then, before you made that remark, and you were under the impression it had started on towards Ft. Smith? A. Yes, sir; as soon as I found the train had passed and stopped, I made the remark to them, if they would hurry or run, they could get on the train. Q. You stated a while ago that you heard it puff, and you thought it was starting towards Ft. Smith? A. Yes. sir; I just remember that my impression was that, if they would start. they could get on the train, and that suggested to me that the train was going on this way [towards Ft. Smith]. Q. You heard the puffing just as a train that was starting? A. Yes, sir; I supposed it had just started,"
These are the only witnesses who were on the station platform that night who testified to what the persons standing on the platform saw and heard and believed with reference to the movements of the train. But their testimony is not all of the evidence which the jury had a right to take into consideration in determining whether Whittle was guilty of contributory negligence. Whittle's death itself testifies against the wanton and reckless negligence on his part which must be shown to defeat a recovery in this case. In Railroad Co. v. Nowicki, 46 Ill. App. 566, the court said:
"While it is true that, in an action for personal injuries based upon the negligence of the defendant. it is an essential element of the plaintiff's case that the injured party must have been in the exercise of ordinary care; yet it is not indispensable that such fact ShOllld be directly shown by affirmative evidence. There is in all men a natural instinct .of self-preservation, and such instinct is an element of evidence of which the jury may take notice, and, in the absence of all testimony upon the subject, find that a deceased party, in obedience to the ordinary instincts of mankind, exercised that care for his safety which a prudent man would, under the same conditions, have made use of," "The natural instinct," says Agnew, J .. in Allen v. Willard, 57 Pa. St. 374, 380. "which leads men in their sober senses to avoid injury and preserve life, is an element of evidence. In all questions touching the conduct of men, motives, feelings, and natural instincts are allowed to have their weight;. and to constitute evidence for the consideration of courts and juries."
And see, to the same effect, McGhee v. White, 13 C. C. A. 608, 66 Fed. 502; Gilchrist v. Eustrom, 16 C. C. A. 421, 69 Fed. 794. This rule of evidence has been twice announced and acted upon by the supreme court of the United States. In Railroad Co. v. Griffith, 159 U. S. 603, 610, 16 Sup. Ct. 105, the court said:
"Since the absence of any fauIt on the part of a plaintiff may be inferred from .circumstances, and the disposition of persons to take care of themselves, and to keep out of may properly be taken into consideration (Rail-
road Co. v. Gladmon, 15 Wall. 401), it is impossible to hold, in the light of this evidence, as matter of law, that the conduct of plaintiff' was such as to defeat a recovery."
It is perfectly clear upon the evidence that neither Whittle, nor any other man on that platform that night, saw or heard anything to indicate that the train was backing up, or that it would back up. He was sobel' and in the full possession of his senses, and it is incredible that he knowingly and intentionally ran against a moving train which he saw or heard. He was struggling over the rubbish and through the darkness, to reach the train which Noble had told him was moving out for Ft. Smith. Why should he be convicted of negligence in not seeing and hearing what the other persons situated exactlv as he was neither saw nor heard. The law does not hold men for a knowledge of acts unless their ignorance arises from some fault or negligence of their own. The witnesses agree that it was so dark that the train itself could not be seen until one was "right up to it." If a train of cars could not be seen, how could ",Vhittle see the rails on the railroad track, or know whether he was on the railroad track or not? The truth is that he was lured to his death by the most gross and culpable negligence on the part of the railroad company. That negligence consisted in a variety of acts. It was the duty of the railroad company to have the station platform lighted, and it was not lighted at all. When the station /agent closed the ticket office for the night, and went off to bed, he turned down the wick of the lamp in the office so low that the fact that the lamp was lighted at all was barely discernible when looking at it through the office window. It was not left lighted for any purpose of lighting the office, much less the platform, but so that a light might be quickly made by turning up the wick, instead of having to light it with a match. It shed no light on the platform. The company owed Whittle the further duty of having an agent awake and at his post to seasonably flag the train, so that it might stop at the platform, or, if it failed to do so, to impart to him such information as might be necessary to enable him to get on the cars in safety. If the station agent had been there to flag the train at the proper time, it would have stopped at the platform. The company, having negligently permitted the train to go by the platform, was guilty of gross negligence in backing it up to the station on a dark night, without having any light or signal on the rear car, and without blowing the whistle or ringing the bell or giving any signal whatever of its approach. If the station agent had been at his post, and had flagged the train in due time, or if the train had stopped at the station platform, or if, when it ran by, the station agent had been there to give information as to its future movements, or if the train could have been seen, or there had been lights on the rear end, or the bell had been ringing or the whistle blowing, or the station platform or grounds had been lighted up so the rails and track could have been seen, a different question would have been presented; but the railroad company negligently failed to perform a single one of these duties. It is quite foreign to the case, therefore, to cite authorities to show that one who knows he is on a railroad v.74F.no.2-20
track, and who is wrongfully there, and who can readily see and hear a coming train, may be held guilty of contributory negligence. A railroad company owes to its passengers a much higher duty than it owes to trespassers on its track, or even to persons crossing its track at public highways. To its passengers it owes the absolute duty of providing them a safe passage to and from the cars, and passengers have a right to rely upon the discharge of this duty by the company. Railway Co. v. Johnson, 59 Ark. 122, 26 S. W. 593, and cases cited. If Whittle was on the track, he was there unwittingly, and because of the acts of negligence of the railroad company which justified him in seeking the train, and the railroad. company will not be heard to complain that he did not foresee and provide against its numerous acts of gross negligence. ",Vebb's Pol. Torts, 592. "It is not necessarily and of itself contributory negligence to do something which, apart from the state of things due to the defendant's negligence, would have been imprudent." rd. 593. But it is said, suppose the railroad company was guilty of all the acts of negligence charged, "these' facts render the risks that were assumed by the deceased'so much the greater." Butit was the railroad company that imposed these risks upon Whittle, and it cannot shift the consequences of them on him. The reasoning seems to be that if there was no light on the rear car, and no signals given, and it was so dark the plaintiff could not see the train on the track, he ought not to have proceeded to hunt up the train at all without a light. The railroad company cannot take advantage of its own wrong in this manner. It is liable for the damages resulting from the risk its misconduct compelled Whittle to run if he acted as a reasonably prudent man would have acted under the same conditions. That he did so act is proved beyond all reasonable doubt by the fact that every man on that platform believed he was doing a proper thing to follow up the train. His two companions did the same, and that they did not share his fate is owing to the fact that he was in the lead. Noble advised all of them to do it. It makes no difference that Noble was not an agent of the company. His advice shows what a reasonably prudent man thought was proper to be done under the circumstances. That Whittle, amidst the obstructions and in the darkriess, got onto the railroad track, was not his fault, but the direct result of the multiplied negligent acts of the railroad company. . A contention like that made by the majority of the court in this case was made in Low v. Railroad Co., 72 Me. 313, 321, and the court answered it in this wise:
"The defendant's counsel put the dilemma thus: 'If the night is light enough to see the gangway, no railing or light is necessary to enable a person to avoid it; and, if the night is too dark to allow of its being seen, then a person groping around in the dark, and unconsciously walking into it, is guilty of such negligence as to preclude him from recovering.' But if this plausible statement is absolutely correct, there never can be an accident of this description for which the injured party can recover. 'l'he idea seems to be that there is no necessity for any precaution on the part of the wharf owners, because constant vigilance on the part of those who come there when it is light enough to see the danger will enable them to avoid it; and. duty or no duty; they must not come without a light in the nighttime, or they
will be set down as wanting in ordinary care, and so forfeit their right to protection or compensation. The argument establishes. if anytlJing. too much. The questions are not of a character to be disposed of by a little neat logic. They are rather, as remarked by the court in Elliott v. Pray, 10 Allen 384, 'questions which can be best determined by practical men on a view of all the facts and circumstances bearing on the issue.' No such sweeping syllogism as this presented by defendant's counsel can be adopted as a rule of decision."
In Railroad Co. v. Van Steinburg, 17 Mich. 99, 118, Judge Cooley, delivering the opinion of the court, said:
")iegligence, as I understand it, consists in a want of that reasonable care which would be exercised by a perBon of ordinary prudence under all the circumstances in view of the probable danger of injury. The inquiry is therefore one which must take into consideration all these circumstances, and it must measure the prudence of the parties' conduct by a standard of behavior likely to be adopted by other persons of common prudence. * * * Thus, the problem is complicated by the necessity of taking into account the two sets of circumstances affecting the conduct of different persons; and it is only to be satisfactorily solved by the jury placing themselves in the position of the injured person, and examining those circumstances as they then presented themselves to him, and from that standpoint judging whether he was guilty of negligence or not. It is evident that such a problem cannot usually be one upon which the law can pronounce a definite sentence, and that it must be left to the sifting and determination of a jury."
The judgment of this court in Railway Co. v. Sharp, 27 U. App. 334, 11 C. C. A. 337, and 63 Fed. 532, is directly in point in this case. In that case it was claimed that the plaintiff was guilty of contributory negligence by driving on the railroad track after night, when he heard a locomotive puffing not far from the crossing. This court said:
"He heard no sound but the puffing of the locomotive. The bell was not ringiug, and the whistle was not blowing. There was no flagman at the station, and no light there or elsewhere between the two switch lights, amI nothing could be seen on the track bptwcen the locomotive and the crossing; and, satisfied that he could cross the track in safety before the locomotive could reach the crossing even if it was coming towards him, he started to do so. His horse crossed the track in safety, but the hind end of his cart was struck by a moving flat car, and he received the injuries complained of. H turned out that the locomotive was pushing three or more flat cars towards the crossing, which, owing to the darkness, the plaintiff could not see, and which he did not hear, and which had no light or flagman or other agency on them to give warning of their approach. 'Ve are unwilling to lay it down as a rule of law that the plaintiff was negligent In not anticipating the particular act of negligence of the defendant which occasioned the accident. Hutchinson v. Railway Co., 32 Minn. 398, 21 N. W. 212; Weller v. Railway Co. (Mo. Sup.) S. W. 1061. The jury, by their verdict, have said that the plaintiff was not required to conjecture or surmise that the company would attempt to back a train of fiat cars, which made little or no'noise, over a public crossing, in the suburbs of a city, on a dark night, without a brakeman or a light or other signal on tbem to warn the public of their and we concur in that conclusion."
In Staal v. Railroad Co., 57 Mich. 239, 23 N. W. 795, the court said:
"Whether the moving forward [to cross the railroad track] as it was done was culpable negligence must depend on what Staal was bound to antici· pate. In the absence of any knowledge of what was passing in his mind, we cannot hold him conclusively at fault, unless there is no sensible explanation to the contrary reasonably possible."
A case in point is that of Hartwig v. Railway Co., 49 ·Wis. 358, 5 N. W. 865. On a stormy, dark night the train stopped further from
the station than usual. The plaintiff asked the night watchman who was at the depot, whether he had to walk that far back to get on the caboose, and the watchman replied, "I guess you have." The plaintiff then started to the caboose, and, on his way, fell into an open cattle guard between the tracks, and was injured, and it was held that the railroad company was liable. It is said Whittle should have anticipated the backing of the train, because that is what is customarily done when a train runs by the station. That maybe so with a well-regulated railroad which is operated with a due regard to the public convenience and safety. But all the testimony shows that the management of this railroad at that station on that night falls far below the standard of a wellregulated railroad. Even the backing up to the station resulted from a mistake of the engineer in supposing he had a signal to back up, when he had none. He testifies that the conductor did not give him any signal to back up, and that he did not see the conductor give the fireman such a signal, but that he thought he saw the fireman give him a signal to back:
"I thought the fireman did, but he says he didn't. * '" * Q. The motion you say was the usual signal'! A. Yes, sir; what I thought was the usual signal. Q, But since that you say he has told you- A. Yes, sir; he told me he did mot give the signal."
And so Whittle is declared guilty of culpable negligence, because he did not anticipate that, through a mistake of the engineer in interpreting a movement of the fireman, the train would be backed up to the platform on that night! Whether V\Thittle knew what the practice of a well-regulated railroad was in this respect we have no means of knowing. So far as anything is disclosed by this record, this railroad was the first and only one Whittle ever saw, and his knowledge of its conduct and management was derived from what he saw and learned at that station on that night. From that observation and experience, neither Whittle nor anyone else could have the least expectation that anything would be done by that road, on that night, at that station, according to the rules of a wellregulated railroad. Oertain it is that nothing was so done. The quality of Whittle's action must be judged by the special circum· stances and surroundings at the time and place, We must place ourselves in his position, and look at the circumstances and surroundings as they presented themselves to him, and say whether his action was such as might be expected of a man of common prudence and intelliience under similar The question is not whether his act would have been prudent at another time, and at a well· lighted station upon another railroad, which was being operated with some regard to the convenience and safety of its patrons. It is ob· vious the accident would not have occurred at such a station and upon such a road. Nor was Whittle bound to exercise all the care a judge schooled in the law of contributory negligence, and having in mind the lessons it teaches, would probably exercise. That standard of care would be much too high to impose on mankind generally. If he behaved as a plain countryman of common prudence and intelligence would have done under all the circumstances then sur-
S'f. LOUIS & S · .1<'. R. CO. 'V. WHITTLE.
rounding him, the law acquits him of negligence. Who so capable of deciding whether his action came up to this standard of care as men who are themselves plain sensible men of common prudence and intelligence, and who will bring to the solution of the question their own common sense and practical knowledge and experience? It is indisputable that the question of contributory negligence is one of fact for the jury. When it is said that a given act constitutes negligence in law, the statement means no more than that, in the judgment of all reasonable men,-not judges alone,-it would be esteemed such. The expression "negligence in law" has come into common use, but it is not to be inferred therefrom that the judges are endowed with the power and authority to declare what acts shall constitute negligence or due care, for these are questions of fact, which it is the exclusive province of the jury to determine. Judges are presumed to be possessed of common knowledge and understanding, and when their common knowledge enables them to say that by the consensus of public opinion, by the uniform judgment of all reasonable men and the uniform verdict of juries, a given act is an act of negligence, they have a right to say that the rule as to that act must be regarded as settled. But they say this, not because it is their opinion, but because it is the opinion of all reasonable men; and, if it is not the opinion of all reasonahle men, they are npt authorized to my it. In Railroad Co. v. Van Steinburg, supra, Judge Cooley said:
"The case, however, must be a very clear one which would justify the court in taking upon itself this responsibility; for, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's eonduct by that. turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the drculllstanees. He thus makes his own opinion of what would be generally reg-an1ed as prudence a definite rule of law. It is quite possible that, if the same question of prudence were submitted to a jury eollected from the different oecupations of sodety, and perhaps better eompetent to judge of the eommon opinion, he might find them differing with him as to the ordinary standard of proper eare. The next judge trying a similar case may also be of a different opinion, and; because the ease is not clear, hold that to be a question of faet whieh the first has ruled to be one of law. Indeed, I think the eases are not so numerous a,; has been sometimes supposed in which a judge eould feel at liberty to take the question of the plaintiff's negligenee away from the jury. This question was very fully and carefUlly considered by the supreme court of Connecticut, in Beers v. Railroad Co., 19 Conn. 566, and a rule was laid down, which has since been followed in that state, and is very succinctly stated in Park v. O'Brien, 23 Conn. 347, as follows: 'The question as to the existence of negligence, or a want of ordinary eare, is one of a complex character. Tile inquiry, not only as to its existence, but whether it contributed with negligenee on the part of another to produce a particular effect, is much more complicated. As to both, they present, from their very nature, a question, not of law, but of fact, depending on the peculiar circumstances of each case, which circumstances are only evidential of the principal fact,-that of negligenee or its effects,-and are to be compared and weighed by the jury, the tribunal whose province it is to find facts, not by any artificial rules, but by the ordinary principles of reasoning; and such principal fact must be found by them before the court can take cognizance of it, and pronounce upon its legal effect.' It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed the question of negligence is necessarily one of law. This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty."
The issue between the members of this court is clearly defined. On the one hand it is maintained that it is for the court to determine whether the acts of Whittle, under all the special and peculiar circumstances surrounding the case, constitute contributory negligence in law; and the contention on the other hand is that whether those acts constitute contributory negligence is a question of fact for the jury, and not of law for the court. The question is not to be obscured by confounding it with the generality of cases in which, if there is either no evidence or not sufficient'evidence to warrant a verdict, the court may take the case from the jury for want of evidence. This case is not one of lack of evidence. The contention of the majority is not that there was no evidence to go to the jury, but that the facts proved constituted contributory negligence in law. The contention of the minority is that it is the province of the jury to determine what constitutes contributory negligence from the proven facts. It would be an affectation of learning to cite the hundreds of cases in this cOllntry and in England which hold this question is one for the jury. In addition to the cases already cited I content myself with citing two or three of the judgments of the supreme court of the United States on this question. The position of the majority is expressed in the following sentence in their opinion:
"'Ve ,think that the undisputed evidence contained in the record shows that the deceased was gul1(l' of an act of negligence which directly contributed to his death,"
Against this assumption of the majority that it is their province to decide upon the facts proved whether the "deceased was guilty of an act of negligence," I interpose the clean-cut and emphatic declaration of the supreme court of the United States that:
"Although the facts are undisputed, it is for the jury, and not for the judges, to determine whether proper care was given, or whether they established negligence." Railroad Co. v. Stout, 17 Wall. 657.
In Railway Co. v. lves, 144 U. S. 408, 12 Sup. Ct. 679; the lower court, in its charge, told the jury:
"You fix the standard for reasonable, prudent, and cautious men under the circumstances of the case as you find them, according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved, and try it by that standard; and neither the judge who tries the case nor any other persons can supply you with the criterion of judgment by any opinion he may have on that subject."
And the supreme court held this was the law, and affirmed the judgment. In the same case the supreme court said:
"It is earnestly insisted that although the defendant may have been guilty of negligence in the management of its train, which caused the accident, yet the evidence in the case given by the plaintiff's own witnesses shows that the deceased himself was so negligent in the premises that, but for such contributory negligence on his part, the accident would not have happened. ... ... ... To this argument several answers might be given, but the main reason why it is unsound is this: As the question of negligence on the part of the defendant was one of fact for the jury to determine under all the circumstances of the case, and under proper instructions from the court, so, also, the question of whether there was negligence in the deceased, which was the proximate cause of the injury, was likewise a question of fact for the jury to determine, under like rules,"