Where, in an action against a common carrier to recover damages
for injuries to a passenger, there is uncertainty as to the
existence of either negligence or contributory negligence, the
question is not one of law, but of fact, and to be settled by a
jury, and this whether the uncertainty arises from a conflict in
the testimony or because the facts being undisputed, fair-minded
men will honestly draw different conclusions from them.
On April 11, 1886, W. D. Powers was run over by a train
belonging to the Richmond and Danville Railroad Company at a
station known as "Lula," and so injured that he died in a few
hours. This action was brought to recover damages therefor. The
plaintiffs are his children, and the proper parties, under the
Georgia statutes, to maintain the action. It was commenced in the
City Court of Atlanta, Georgia, and thence removed by the defendant
to the Circuit Court of the United States for the Northern District
of Georgia. A trial was had in November, 1888, which resulted in a
verdict and judgment in favor of the plaintiffs for $9,800. On the
trial, the defendant asked the following instruction:
"The undisputed fact exists in this case that the deceased man,
Powers, being at the time about forty-five years of age, and, so
far as the evidence discloses, in full possession of all his
faculties, deliberately stepped upon the railroad track immediately
in front of an engine which was running towards him at the rate of
five or six miles an hour, and not more than ten feet off, and was
almost instantly run over and killed."
"To say that this was an ordinarily careful act or that this
conduct was not negligence on his part would do violence to a plain
and well settled principle of law. Admitting that he
Page 149 U. S. 44
was a passenger, and therefore not bound, as a traveler on the
highway approaching a crossing would be bound, to listen and to
look both ways before attempting to cross the track, still the
immediate presence, within a few feet, of a moving locomotive,
would, it seems to me, have awakened all the senses of an
ordinarily careful man, and would have warned him, in more ways
than one, that he ought not to put himself on the track right in
front of it."
"It cannot be doubted that this was a careless and dangerous
step. If he had been ordinarily careful, he would not have been
killed or injured even if the defendant was negligent. There is
nothing in the other testimony in the case which relieves him from
the consequences of this act of negligence. If he had not died, and
had brought suit, he could not have recovered, nor can these
plaintiffs recover, under these facts, and it is therefore your
duty, under the law, to find a verdict for the defendant."
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The only error assigned is in the refusal of the court to
instruct the jury, as requested, substantially that the
deceased
Page 149 U. S. 45
was guilty of such contributory negligence as to prevent a
recovery. It is well settled that where there is uncertainty as to
the existence of either negligence or contributory negligence, the
question is not one of law, but of fact, and to be settled by a
jury, and this whether the uncertainty arises from a conflict in
the testimony or because, the facts being undisputed, fair-minded
men will honestly draw different conclusions from them.
Railroad Co. v.
Stout, 17 Wall. 657;
Washington &
Georgetown Railroad v. McDade, 135 U.
S. 554;
Delaware & Lackawanna Railroad v.
Converse, 139 U. S. 469.
No objection is made to the instructions which were given, no
suggestion that the law as to negligence and contributory
negligence was not properly stated to the jury; so we have the
question whether the facts, as developed by the testimony, were
such as to compel a declaration, as a matter of law, by the court,
that there was contributory negligence on the part of the deceased
such as to prevent a recovery. What are the facts, as disclosed by
the testimony? Lula is a station in Hall County, Georgia, at which
at that time both the north- and south-bound trains of the
defendant's road stopped for supper. Deceased was a passenger on
the north-bound train. There were two tracks in front of the
station and eating house. The south-bound train arrived first, and
ran along the inner track, the one nearest to the station. After
its passengers had all gone in to supper, it moved back towards the
north, and left the space in front of the station and eating house
open. Soon afterwards, the north-bound train came in, and passed up
on the outer track. This was about 8 o'clock in the evening. The
deceased did not intend to go any further than Lula, and expected
to spend the night there. The two tracks were from eight to ten
feet apart. The earth between the rails on the inner track had been
leveled up, covering the ties, so as to make a smooth place for
walking upon. There was no light, other than the headlights of the
locomotives, and from a bonfire of pine knots near the eating
house. After the north-bound train had stopped and other passengers
had left the train for the purpose of going in to supper, deceased
started
Page 149 U. S. 46
with two satchels, one in each hand, across the track to go to
the eating house or hotel, and just at that time the south-bound
train moved up, and ran upon and injured him. In reference to the
foregoing facts there was no dispute.
Further than that, there was testimony tending to show that as
deceased was leaving the train, a man with his wife and two
children, five and seven years of age, started to get off the car;
that deceased, putting down his satchels, stopped to help them off;
that there was no conductor, brakeman, or other officer of the
company present to render any assistance; that after they were
safely off the car, deceased took up his satchels, and they all
started, nearly together, in the direction of the eating house at
an angle across the inner track; that while thus walking, the
south-bound train came along, without ringing a bell at a rapid
speed; that the engineer, being on the right hand of the engine,
could not see anyone on the left side of the track for quite a
distance in front of the engine, and the fireman was so occupied
that he could not see the track at all; that just as the engine
neared the party, somebody called out, and the man who had been
helped off the train by the deceased jumped, with his wife, pushing
the children over, and barely landing on the platform as the engine
passed by, while deceased, who was at his side, but a trifle in the
rear of the others, was caught by it, and run over. It did not
appear that any of the party had ever been at Lula before, or knew
of the existence of an inner track or the situation or
surroundings, although it did appear that the deceased had been
traveling on the railroad. The man and his wife who thus narrowly
escaped testified that they did not know there was a track upon
which they were walking; that no bell was rung, and that they had
no thought of an approaching train until the outcry, upon which
they jumped, and barely saved themselves. What the deceased heard
and saw and knew is not affirmatively shown, but the entire
circumstances of the injury tend to show that he was as ignorant as
they in respect to these matters. They had moved but a few steps
from the car towards the eating house before the deceased was
struck. Upon such facts as these, is it not a question upon which
minds might differ
Page 149 U. S. 47
as to whether the deceased was guilty of contributory
negligence? Do not these facts tend, at least, to show that he was
exercising due care? His tarrying behind the other passengers was
owing simply to his effort to help those who needed help, and in
discharging a duty resting upon the officers of the company and
neglected by them. After they had all alighted from the car, they
started together in the direction of the eating house, as disclosed
by the bonfire, without knowledge of an intervening track or
without thought of an approaching train. No bell was run, no
warning given, until the moment of the accident, and then too late
for all of the party to save themselves.
It seems as though there could be but one answer to these
questions. If these facts do not establish due care on his part,
they at least tend very strongly to prove it. It is true that there
was testimony tending to show a different state of facts; that the
bell of the engine was rung as it moved down the track in front of
the stationhouse; that it was moving at a very slow rate of speed
-- not faster than a man would walk; that the deceased, on
alighting, put down his satchels, waiting for someone from the
hotel to come and help him carry them, and that he was there some
minutes before he started for the hotel. And indeed there was some
testimony tending to show that there were no such persons present
as the family who claimed that they were helped off the train by
deceased. But, of course, all conflict in the testimony was settled
by the jury, and could not be determined by the court, and unless
it were affirmatively shown that the deceased, when he left the car
and started towards the eating house, knew that he was walking
along a track, and that there was danger from another train, and
with such knowledge neither looked nor took precautions to satisfy
himself whether there was present danger therefrom, it surely
cannot be held that there was as a matter of law contributory
negligence on his part.
There was no error in refusing the instruction, and the judgment
is
Affirmed.
