the cQurt, while maintaining the. right of. congress at any time prior to the definite location to withdraw .the and bestow them in aidol another road, answered the argument that such a construction might defeat the entire grant py referring to the presumption that congress "acted and would act in good faith," and without intent to deplete the grant by subsequent legislation, or, in other words, declared that, while congress had the .power to deplete the grant, it might be relied upon not to exercise the power. But can any such presumptiou. arise in favor of the protection of a land grant as against the entry of individual settlers under the homestead and pre-emption laws? May they be relied upon to act in good faith, and with due regard for the. rights of the railroad company and the intention of congress?In the sentence above quoted from the opinion in Menotti v. DiUon, "That order took these lands out of the ' public domain, as between the railroad, company and individuals," is contained, in brief, the rule of law which is established by the decisions, and by which the present question should be governed. Lands so withdrawn are reserved from settlement. by pre-emptors. So far as the settler is concerned, they are no longer witbillthe public domain, or, as was 'said in Northern Pac. E.. Co. v. MUilJser-Sauntry L. L. & 2\1fg. Co., "The act of the secretary was,. in effect, a reservation." These utterances of the supremeconrt, which·aresubs,eqllent in time to the decision in the Sandera Case, manifest the purpose of the court to· adhere to its settled definition of the 9fliceand effect of a withdra:wal,,-a defulition which cau.bave but one IU,el;tning. Ifsuch is the true construction of the grant,a pre-emption entry, the initial· step of wb.ich was ta.kell subsequent to the withdrawal, cannot avail to except the land from the grant.
GRANn TRUNKRY. CO. OF CANADA v. BAIRD. (CIrcuIt Court of Appeals, Second eli·cuit.
March 1, 1899.)
INJURY TO EM'PLOYE-CONT10BUTORY NEGLIGENCE.
PlaintUr had. foreman of track repa,lrS.!>ntlle tracks In the yards. of the defendant railroad company,. ,and' was. familiar with the ,course at business. in.switching yards. llilleW,tl;lat when an engine of the defendant went westward beyond a' certain point on a certain traqk it must return <;In another track. He knew that an engine had gone' upon the' first-nained track; and must shortlyteturn upon the . other.' ·He' 'glanced at the switches; a:n,dthought he BIlW that the track Wa&' closed, ·and walked tracks, .and turned, to cross on, the return traclF, wl,1en ).llil:\VllS the engine: .Hlildid not look, on the a$slltP.ption that the engine was not comIng, because lie had heard no signa10flts approach. Held, that he 'was'gullty of contributory negligence.
District of New York.
In Error to the Circuit Court of the United States for theNorthern
The defendant in error, hereinafter cirlled the "plaintiff," bronght an action at law, subsequently removed to the Uhited States circuit court for the North·
GRAND TRUNKRY. CO. V. BAIRD.
erb. district of New York, against the Grand Trunk Railway Company of CaJ;lada, hereinafter called the "defendant," to obtain damages for an injury a1-. leged tp have been suffere<1by its negligence. A verdict for $14,500 was rendel'ed for the plaintiff, upon which judgment was entered, and this writ of error was brought to review the jUdgment.
George F. Brownell, for plaintiff in error. George Rainecs, for defendant in error. LACOMBE and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. The injury occurred about half past 11 o'clock in the forenoon of May 4, 1892, upon a clear day, at the railroad yards of the New York Central Railroad Company, at Suspension Bridge, N. Y. The plaintiff was then about 36 years old, began railroad work in December, 1875, had been continuously in the employment of the New York Central Company, with the exeeption of ayear and four months, and was a foreman of track repairs upon its tracks at Suspension Bridge, from May 8, 1890, until the accident. The main tracks of the New York Central are south of the Suspension Bridge station. Tracks Nos. 1 and 2 are north of the station,and extend thence easterly to the New York Central freight yard. Track No.3 is a stub track, ending at the northerly end of the station. These three tracks run westerly, converge at a point where there are two switches, about 600 feet west of the station, known in the case as "A," and become one track which continues westerly towards the Suspension Bridge. Tracks 1 and 2 are used by the defendant for carrying its freight and passengers into Canada. No.3 is used by the New York Central road generally. Loaded freight cars destined for the Grand Trunk road are placed in the freight yard east of the station, are brought down by the switching engines of that road, and usually placed upon No.1, and the train, when made up, is hauled upon that track beyond the switches to the defendant's Suspension Bridge connections. The engine returns, is switched at A to No.2, comes back to a point east of the station, and a switch is turned to enable it to pass upon No. 1 again. When the switching engine is about to return from the bridge, the switchman opens the switch at A to permit it to pass as a matter of course, and without previous notice, upon No.2, or, if the switchman is not at that point, a signal of two whistles is given from the engine to recall him. This yard and these tracks are constantly being used for switching purposes, and the plaintiff was familiar with the course of business, and knew, when he saw a switching engine going westward on track No.1 beyond the switches, that it would soon return on track No.2. On the morning in question the conductor of engine 449 found among his freight in the New York Central yards two cars for the Erie road. They were placed next the engine, and the train was pulled to the depot, and stopped on track No.1. The two Erie cars were cut out, sent down on track No. 1, and delivered to the Erie yard by engine 449. The engiue came back as usual to the switch, was switched to No.2, and continued upon that track until the accident happened, 193 feet east of the switch points. The switch was opened by the switch tender
94 FEDERAL REPORTER.
from his own knowledge of the necessity for doing so, and without a call by whistle. The plaintiff testifies that he saw engine 449 when it pulled the train from the freight yard upon track No.1, tllat it, was cut off, moved away from the train, and was at the switch, A, and was moving westward beyond the switch. He thought that no cars were attached to it. lIe was, at that time,overseeing the unloading of some ties at a point on the main tracks about, 60' feet south of the Diamond crossing, which is about 40 feet west of A. He testifies that he then went over t() the frogs near A, and examined those on No.2, to see whether they were in good order; saw what one of his workmen, named StaW, was doing, who was w()rking a few feet east of the crossing at the switches A, and who was about opposite the plaintiff on the other side of the track. He then walked down between tracks 1 and 2 a space of about 7-! feet wide, and spoke to a workman named Smith; then walked beyond him about 50 or 60 feet, to speak to his men, who were loading iron on track 3; was going to step across track 2, and had just placed one foot over the rail, when he was struck by engine 449. He says tb,at he was listening for a signal, heard no, bell, had not looked back to see whether the engine was returning, paid no attention to it utter he saw it move westerly, that when he was looking at Stahl he noticed the condition of the switches, and saw that the switch for No. 1 was open and No.2 was closed. .Resays that the accident might have been six or seven minutes, or a little mOre than that,. after he noticed the condition of the switch. He received very severe injuries. llis leg was cruslied; was necessarily amputated. The result of his other injuries is probably permanent. His.earning capacity is pretty much destroyed, and, if he was entitled to a judgment in his favor, the injury justified the. amount of the verdict. It was apparent that the defendant was not in fault for not seeing and attempting to avoid, him when he was upon the track, for he had only placed one foot over the rail when he was struck. When the evidence was closed, the two poiuts upon which the plaintiff relied in order to establish the negligence of the defendant, were an unusual rate of speed of the engine after it passed upon track No. 2, or that it proceeded without ringing the bell. The state of the evidence required that the question of negligence should be submit· ted to the jury, which the trial judge did substantially as follows:
"The testimilUy is so clear that the engine came, and, traCk No.2 being open, proceeded, as it customarily did, that it seems to me the only matter which req'lires your serious consideration upon this. branch of the case is whether the engine, after it passed upon track No.2, proceeded at an undue rate of speed, or proceeded without ringing the bell.. In the first place, what was the customary rate of speed, and what was the practice In respect to ringing the bell? I shall not dwell upon the evidence. It has been suggested-and the suggestion is entitled to consideration-that all the men in charge of this engine tesHfiY that the bell was being rung, and that the engine was 'moving at a very moi:Ierate rate of speed, and it is competent for you to infer. from their conduct of the engine as would have us believe it was upon this occasion, and the other testimony in the case', what the ordinary practice was. If you find that their testimony is not reliable, that they were not in observance of the ordinary practice, that they were running the engine at an
GRAND TRUNK RY. CO. V. BAIRD.
01' speed, and were not ringing the bell, then you can find the plaintiff has established his case, so far as it rests upon the negligence of the de1'endant. If, on the other hand, you find that on this occasion the defendant, through its employes, observed the precautions which were usually adopted, running the engine at the usual rate of speed, ringing the bell, as they testify they did. then the plaintiff must fail, because he will not have succeeded in establishing that the defendant was guilty of negligence."
The verdict of the jury establishes the fact that they found the issue for the plaintiff. The remaining vital question in the case is whether the conduct of the plaintiff so palpably showed contributory negligence that the judge should, in accordance with the request of the defendant, have taken the case from the jury. He did submit it to them under a charge manifestly in favor of the defendant, but permitting a verdict in favor of the plaintiff. His charge upon that subject was, in substance, as follows:
"Then we pass to the question of contributory negligence. And you are to bring the judgment and observation of intelligent men to the consideration 01' the particular circumstances of the case. If it is true that the plaintiff supposed that the switch on No.2 was not open; if it is true that, going only the distance that he l1id,-l90 or 200 feet,-he would have heard a signal made by the approaching engine to the switchman; if it is true that, not hearing this signal, believing the swit.cli to be closed, and not hearing the ringing of the engine bell, becausf none was rung, he stepped upon the track,-You may find that that was not an act of negligence' on his part, but that under the same circumstances a man of ordinary care and prudence would have done the same thing. Yet you are not to lose sight of the consideration which has often been enforced by the courts, and is the law, that it is the duty of every person, when crossing a railroad track, or when approaching any perilous place, to exercise the facuLties which his Creator has given him for his preservation and protection; to exercise all his faculties, including his eyes and ears. 'Vere the circumstances in this case such as to'justify a man, in the exercise of ordinary prudence, in not turning about to see whether the train was approaching? Were the circumstances such that he could rely upon hearing the approach of an engine?"
He also said that, if the plaintiff had turned about, and looked behind him, before stepping upon the track, he could have seen the approaching locomotive. If contributory negligence was established beyond question, it was so established by the testimony of the plaintiff in connection with the uncontroveI·ted facts, and the case could not have be taken from the jury except upon the gI'OUnd n that, regarding his entire testimony as true, the facts as admitted by him permitted no escape from contributory negligence on bis part. The uncontroverted facts were that the scene of the accident was a railroad yard, in which switching engines were constantly in operation; that the course of business for such engines upon tracks 1 and 2 was uniform, and well known by the plaintiff, who was in an important position, and thoroughly trained in the work of the yard, and who knew that when an engine went westward beyond the switches at A it must return upon track 2. His conduct was based, according to his testimony, upon the facts that he had seen that track No.2 was closed, that until it was open no engineeould reap· pear upon it, that he should hear a signal by bell telling that the engine had reappeared, and that he listened, as he walked, for that purpose. It is admitted that he did not otherwise watch for the
return of the engine, or. look to see whether it was comiIl.g. The question,then, is, can a jury be permitted to say that his attempt to cross No.2 was, state of facts,l1ofll.n act of gence, but justifiable a.l:\ an of ordinary prudence? The question of negligence is ordinarily one of Jact, and, beings,uch, is to be to the jury for their ultit;l?-ate determination. "The question of negligence is oI1eof law for the courto'nly where the facts are such, that all reasonable men must draw, the same conclusion from other. wordfl, a should ,not be from the jury.unlfss the conclusion follows, as a matter of law,that no renad up6n any view which can be prop titken of the rIy facts the evidence tends to establish." Gardner ,v. Railroad Co., 150 U. S. 349, 14 Sup. Ct. 140; Elliott v.Railway Co., 15() U. S. 245, 14 Sup. Ct. 85; Railroad Co. v. McDonald, 152 U. S.· 262, 14 Sup. Ct. 619; ,and ap.thorities there cited. there is no suprema()y In the rights of owners of railroads steam over the rights of indiViduals who are also lawfully using.thesanie roadway, yet the danger.s from this means of trans. portation are manifest; while its use has.become a necessity, and it is therefore simply prudenUor the to exercise the caution which experience has shown 1;0 be needful. .An ordinary and almost instinetive exercise of thatclWtion is an endeavor to determine by eyesight,rather thal1 by surmise, whether danger is at hand. It has, therefore, ,becolDe a' requirement, as a general rule, thatapH!ol1 of mature,years, and in of his faculties, wq& is about to evossarajlroad, track over which steam engines are lmown to be in constant use, must neeessarHyusethe precautions against danger eyes 'and earsllnd.powers of. This IS, not a statutory rule, and there are probably cases lUwhlCh such a compulsory regulation is not applicable, and in which other circumstances exist which control its reasonableness; ,as, for instance when the injured person, ,confused by negligence of the, railroad officers, has made a mistake in his means of remedy. Elliott v. Railway Co., supra. It is, however, in ordinary cases, a command of common prudence recognized by reasonable men, is reiterated by courts, and should not be frittered away by juries. The language of the supreme court, especially when directed to the duty of railroad employes to avoid, carelessness in the crossing of tracks, has been clear and definite. Upon the general subject of carelessness by a foot passenger when called upon to cross a railroad track, Mr. Justice Field said in Railroad Co. v. Houston, 95 U. S.697,-a case of injp.ry which resultedindeath,-as follows:
"The failure of the engineer to sound the whistle or ring the, bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautiohsforher safety. Negligence of the company's employes in these particulars 'was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train; and not to walk carelessly into the place of possible danger. Had she. use<1 her senses, she could not have failed both to hear and to see the' train which was coming. 'Ii' she' omitted to use them, and walked thoughtlessly upon. ithe track, she was guilty of culpable negligence, and so far contributed to her.injurles as to deprive her of any right to complain of others."