A highway in the State of Washington crossed the Northern
Pacific Railroad at about right angles. It approached the railroad
through a deep descending cut, and the track was not visible to one
driving down until he had reached a point about forty feet from it.
Freeman was driving a pair of horses in a farm wagon down this
descent. When he emerged from the cut and reached the point from
which an approaching train was visible, he was looking ahead at his
horses. A train was coming up. The conductor, the engineer and the
fireman testified that the whistle was blown. Three witnesses, who
were not in the employ of the railroad, and who were in a position
to have heard a whistle if it had been blown, testified that they
did not hear it. When Freeman became conscious of the approaching
train, he tried to avoid it, but it was too late, and he was struck
by the train and was killed. So far as there was any oral testimony
on the subject, it tended to show that Freeman neither stopped,
looked, nor listened before attempting to cross the track.
Held that the testimony tending to show contributory
negligence on the part of Freeman was conclusive, and that nothing
remained for the jury, and that the company was entitled to an
instruction to return a verdict in its favor.
Page 174 U. S. 380
This as an action by the widow and minor children of Thomas A.
Freeman, originally brought in the Circuit Court for the District
of Washington against the receiver of the Northern Pacific Railroad
Company and subsequently, after the discharge of the receiver,
continued against the Northern Pacific Railway Company, purchaser
at the foreclosure sale, which, by virtue of the provisions of the
decree of sale, had assumed the liabilities of the receiver. The
object of the action was to recover damages on account of the death
of Thomas A. Freeman, which was alleged to have occurred by reason
of the negligence of the company.
The accident occurred at a highway crossing near the eastern
corporate limits of the Town of Elma, in the County of Chehalis, in
the State of Washington at a point where the highway crosses the
railway track nearly at right angles.
Upon the trial, counsel for the railway company asked the court
to instruct the jury to return a verdict for the defendant, upon
the ground that the undisputed testimony showed that the deceased,
as he approached the railway crossing, did not look up or down the
track, and did not see the train which was approaching in full
view, and therefore was guilty of such contributory negligence as
to preclude the plaintiffs from recovering damages. This the court
refused, but left the case to the jury under the following
instruction, to which exception was taken:
"Where a party cannot see the approach of a train on account of
intervening objects, he may rely upon his ears, and whether he
should have stopped and listened under the circumstances is for
you, and if you believe from the evidence that deceased, Thomas A.
Freeman, acted as a man of ordinary care and prudence would have
done as he approached the crossing, then your verdict should be for
the plaintiffs, in case you find that the defendants were negligent
and that the collision was due to their negligence."
Counsel further excepted to the following instruction:
"There has been some testimony tending to show that the deceased
might have seen the approaching train some feet before he reached
the track. If you believe that the deceased could have seen the
approaching train when he was within a few
Page 174 U. S. 381
feet of the track, then it is for you to say, under all the
circumstances, whether he used reasonable precaution and care to
avoid the collision."
Exception was also taken to an instruction to the jury upon the
subject of damages, which does not become material here.
Plaintiffs recovered a verdict, upon which judgment was entered
for $9,000. The judgment was affirmed on writ of error by the
Circuit Court of Appeals for the Ninth circuit, one judge
dissenting. 83 F. 82.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
There was testimony from several witnesses in the neighborhood
tending to show that no whistle was blown by the engineer as the
train approached the crossing. There was also the testimony of the
conductor, engineer, and fireman that the whistle was blown. As the
majority of plaintiffs' witnesses were so located that they would
probably have heard the whistle if it had been blown, there was a
conflict of testimony with respect to defendant's negligence, which
was properly left to the jury.
The real question in the case was as to the contributory
negligence of plaintiffs' intestate. For several hundred feet on
either side of the highway crossing, there was a cut of about eight
feet below the surface of the surrounding country, through which
the railway ran. The highway approached the crossing by a gradual
decline, the length of which was from 130 to 150 feet. Along the
greater portion of this distance, the view of a train approaching,
either from the north or the south, was cut off by the banks of the
excavation on either side of the highway; but at a distance of
about forty
Page 174 U. S. 382
feet before reaching the track the road emerged from the cut,
and the view up the track for about 300 feet was unobstructed.
At the time of the accident, Freeman was driving along the
highway, going eastward from the Town of Elma in a farm wagon drawn
by two horses at a slow trot. He was a man 30 years of age, with no
defect of eyesight or hearing, and was familiar with the crossing,
having frequently driven the same team over it. The horses were
gentle, and were accustomed to the cars.
The duty of a person approaching a railway crossing, whether
driving or on foot, to look and listen before crossing the track,
is so elementary and has been affirmed so many times by this Court
that a mere reference to the cases of
Railroad Company v.
Houston, 95 U. S. 697, and
Schofield v. Chicago & St. Paul Railway Co.,
114 U. S. 615, is
a sufficient illustration of the general rule.
There were but three witnesses to the accident. Two of these
were women who were walking down the highway, and approaching the
crossing on the opposite side, facing the team. At the time the
deceased was struck by the train, they were from 200 to 250 feet
away. They testified that the horses were coming down at a slow
trot, not faster than a brisk walk, and that their speed was
uniform up to the time of the accident; that the deceased looked
straight before him, without turning his head either way; that the
team did not swerve, but trotted directly onto the crossing, and
that the deceased made no motion to stop until just as the engine
struck him. The other witness was a little girl, ten years of age,
who was standing on the hill on the opposite side of the track,
near the point where the descent of the highway into the cut began,
and was consequently from 130 to 150 feet from the railway track.
The deceased passed her and two other young children who were with
her. She testified that as he passed, his head was down, and he was
looking at his horses; that "they went down aways, and then they
run and flew back;" that they were going at a slow trot, and that,
when Freeman saw the train, he tried to pull the horses around,
as
Page 174 U. S. 383
if he were trying to get out of the way, when the train struck
them.
Another witness was driving behind the team, but he testified to
nothing which bore upon the material question whether the deceased
took any precaution before crossing the track.
So far, then, as there was any oral testimony upon the subject,
it tended to show that the deceased neither stopped, looked, nor
listened before crossing the track, and there was nothing to
contradict it. Assuming, however, that these witnesses, though
uncontradicted, might have been mistaken, and that the jury were at
liberty to disregard their testimony, and to find that he did
comply with the law in this particular, we are confronted by a
still more serious difficulty in the fact that, if he had looked
and listened, he would certainly have seen the engine in time to
stop and avoid a collision. He was a young man. His eyesight and
hearing were perfectly good. He was acquainted with the crossing,
with the general character of the country, and with the depth of
the excavation made by the highway and the railway. The testimony
is practically uncontradicted that for a distance of forty feet
from the railway track, he could have seen the train approaching at
a distance of about 300 feet, and as the train was a freight train,
going at a speed not exceeding twenty miles an hour, he would have
had no difficulty in avoiding it. When it appears that, if proper
precautions were taken, they could not have failed to prove
effectual, the court has no right to assume, especially in face of
all the oral testimony, that such precautions were taken. The
comments of Mr. Justice Field in
Railroad Company v.
Houston, 95 U. S. 697,
95 U. S. 702,
are pertinent in this connection:
"Negligence of the company's employees in these particulars
[failure to whistle, or ring the bell] 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 used her senses, she could not have failed both to hear and to
see the train which was coming. If she omitted to use them, and
walked thoughtlessly upon the track, she was guilty
Page 174 U. S. 384
of culpable negligence, and so far contributed to her injuries
as to deprive her of any right to complain of others. If, using
them, she saw the train coming, and yet undertook to cross the
track, instead of waiting for the train to pass, and was injured,
the consequences of her mistake and temerity cannot be cast upon
the defendant."
If in this case we were to discard the evidence of the three
witnesses entirely, there would still remain the facts that the
deceased approached a railway crossing well known to him; that the
train was in full view; that, if he had used his senses, he could
not have failed to see it, and that, notwithstanding this, the
accident occurred. Judging from the common experience of men, there
can be but one plausible solution of the problem how the collision
occurred. He did not look, or, if he looked, he did not heed the
warning, and took the chance of crossing the track before the train
could reach him. In either case, he was clearly guilty of
contributory negligence.
The cases in this Court relied upon by the plaintiffs are all
readily distinguishable either by reason of the proximity of
obstructions interfering with the view of approaching trains,
confusion caused by trains approaching simultaneously from opposite
directions, or other peculiar circumstances tending to mislead the
injured party as to the existence of danger in crossing the
track.
Upon the whole, we are of opinion that the testimony tending to
show contributory negligence on the part of the deceased was so
conclusive that nothing remained for the jury, and that the
defendant was entitled to an instruction to return a verdict in its
favor. The disposition we have made of this question renders it
unnecessary to express an opinion upon the instruction as to
damages.
The judgment of the court below must therefore be reversed,
and the cause remanded to the Circuit Court for the District of
Washington, with directions to grant a new trial.
THE CHIEF JUSTICE and MR. JUSTICE HARLAN dissented.
