In the absence of evidence to the contrary, there is a
presumption that one who was killed while crossing a railroad track
at night stopped, looked and listened before attempting to cross
the track.
Where it appears that it was customary to keep the gates at a
railway crossing down during the night without regard to the
approach or presence of cars, trains or locomotives, the fact that
they are down is not of itself a
Page 191 U. S. 462
warning of the presence of danger to one acquainted with such
custom, while crossing the track at a time when the gates were
generally down.
Where it is an issue in the case whether a man was killed at a
crossing by a regular train which he should know was approaching at
about that hour, or by a runaway car of which he had no knowledge,
and there is evidence on such issue from which reasonable men might
draw different conclusions, it is not error to leave it to the jury
to determine whether or not it was a want of ordinary or reasonable
care and prudence for deceased to attempt to cross the track at the
time and under the circumstances, the jury being charged that their
verdict should be for the defendant if they found that he had been
killed by the regular train.
This action was brought under the death statute of the District
of Columbia for damages for the death of the husband and intestate
of defendant in error. The death was the result of injuries alleged
to have been caused by the negligence of the plaintiffs in error.
The negligence is alleged to have consisted in the insufficient
coupling of the cars of the plaintiffs in error, whereby one broke
loose from the others and ran over the deceased, in not equipping
the car with good brakes, and not having upon it a light sufficient
to give warning of its approach. The answer was not guilty.
The case was tried to a jury, which returned a verdict in favor
of the defendant in error in the sum of $6,500. This amount was
agreed to as correct if the jury should find on the other issues
for the defendant in error.
Judgment was entered for that amount and costs. It was affirmed
on appeal to the Court of Appeals of the District.
The testimony is somewhat long, and we think it is only
necessary to give an outline of what it tended to prove to
illustrate and determine the questions presented.
The plaintiffs in error operated a steam railroad in the City of
Washington, District of Columbia, and maintained four tracks on
Virginia Avenue Southwest, crossing South Capitol Street. The most
northerly of the tracks, called "The Reservation" or "No. 1" track,
was used for freight and shifting purposes. The two intermediate
tracks were used for southbound and northbound passenger traffic.
The most southerly track was called the "ladder" or "lead track."
It was so
Page 191 U. S. 463
called because all the tracks in the railroad yard were
connected with it, and all the switches lead into it. It extended
west across South Capitol Street to an alley, and terminated at
what was known as the property yard, where coal, ties, iron, and
other commodities were stored. Gates and a gateman were maintained
at the crossing. There was evidence tending to show that the
portion of this track lying west of the crossing was used for
storing freight cars, but not passenger coaches, and that no
portion lying west was used for shifting or making up the trains;
but there was also evidence tending to show that it was so used as
occasion required. Landrigan's body was found at the southwest
crossing, south of the "lead track," "but nearer the track than the
gate," and there was flesh and blood alongside of the track upon
its south side. There was also testimony tending to show that the
gates were generally kept down (one witness testified that, in his
experience, they were always down) from ten or eleven o'clock at
night until next morning, whether trains were passing or not, and
persons with vehicles sometimes found it necessary to request the
gateman to raise the gates, and sometimes to wake him up out of
sleep for that purpose. Preceding and at the time of the accident,
a switching crew was making up a train of cars for the
transportation of troops to the south, and it became necessary to
"cut out" a Pullman car, called the "Lylete," which was standing on
one of the tracks. Immediately next to it was a tourist car. It was
equipped with a Miller coupler; the Pullman with a Janney coupler.
Both couplers were of the automatic type, but of different
patterns, and not designed to couple together, and in order to draw
the cars out on the "ladder" track, they were coupled together with
the ordinary link and pin coupling.
There was considerable testimony as to the manner in which the
coupling was done, and of its efficiency, which testimony it is not
necessary to detail. It went to the jury with the other testimony.
It is enough to say that the couplers were of unequal height, and
the link could not be put in the slot of
Page 191 U. S. 464
both couplers. It was put in the slot of the Janney coupler, and
the other end laid on the top of the Miller coupler, "and the only
thing to keep the link from slipping over the head of the pin was a
shoulder around the head of the pin." It came loose, and one of the
employees, who had been in charge of the train, testified that "the
couplings "slipped around," he supposed, when they were going
around the curve, and that had the tendency to make them come
apart; that he supposed it was due to the slack caused by coming
over the switch and "the ladder" track." The "ladder" track had a
slight incline to the crossing, and when the car broke loose, it
started towards the crossing. An employee had tried the brake on
the straight track, but when someone "hollered" that the car had
broken off, he "went to work on the brake again." "It did not seem
to catch hold," he testified, and he then
"dropped off the end of the car and caught the rear end of it --
the head end -- and at the same time Hottal (yardmaster) got on the
end that he got off of; the witness called for Wilber to help him
to put the brake on, and they did all they could to stop the car,
but the car had got too much start; the brake seemed to work all
right -- he did not have any fault to find with the brake, only the
car had gotten too much start; he first tried the rear brake and
could not get that to work; then went to the other one; while
witness and Wilber were working on the forward brake Hottal jumped
on and tried to work the rear brake; they did not succeed in
stopping the car, because it had gotten too much of a start. He got
off at South Capitol Street on the southeast side, stood there for
a second or two, and then ran after the car to see what damage it
had done. There were some other cars down on the end of this track,
that this car ran into, and it would not have been safe for the
witness to have staved on the car."
The witness testified that he
"did not know Landrigan personally; had seen him a number of
times; he saw him after he was hurt; Landrigan's legs were run
over, but he could not say whether it was by the car or another
train; train No. 78, which
Page 191 U. S. 465
left the depot about 11:55 or 11:35, was passing there about the
time of the accident; this train No. 78 is known as the midnight
express for New York, and crossed South Capitol Street, where
Landrigan was hurt, going in an easterly direction; when witness
saw Landrigan the latter was lying on the south side of the outside
rail of the 'ladder track,' the most southerly track of the four
tracks of the crossing; immediately before he saw Landrigan lying
there the coach 'Lylete' passed over the crossing at South Capitol
Street and witness came right along behind this car, after train 78
passed, to see if the coach had done any damage down there, and saw
Landrigan lying there with someone around him; he went down where
the car had stopped and came back and found out what the trouble
was."
As to the position of the gates, he said:
"He first noticed the gates when he came down there after he had
jumped off the end of the car; the gates were down then on both
sides of the street. He did not notice the gates before 78 passed,
because he had not been down that far; he stood on the southeast
side of South Capitol Street until 78 passed, and then started to
run down the main track, and as he ran down the track he noticed
that the gates were down on both sides."
And further,
"the runaway car passed the southwest crossing of South Capitol
Street before No. 78 reached there; it struck just the middle part
of No. 78 as the train came by there; the runaway car had just
about gotten across the crossing when the engine of No. 78 began to
cross the crossing; it was almost at the same time."
There was a white light in the dome of the vestibule of the
runaway car or on the platform, and the effect of the light was
testified to as follows by one witness:
"The lamp in the dome of the vestibule of the Pullman car had a
white shade or globe underneath; it gave a bright light -- you
could see it all right; the lamp was inside of the door, and the
door was closed; the glass in the door extended about half way
down, and the light shone through the glass in the door. "
Page 191 U. S. 466
By another witness:
"That the light in the car was in the dome -- in the vestibule
-- just on the outside of the door, over the platform; he knows
there was a light in the west end of the car, the end going toward
South Capitol Street -- which was the front end of the car the way
it was moving; this light could be seen more plainly than a lamp;
such lights contain two burners, are lighted by oil, and are more
brilliant than a lantern; the reflector is over the top of the
light; there is a kind of white shade over them; that the light in
the vestibule of the car could be seen by people on the ground; it
hung down low, and did not set right up in the dome; it had a shade
over it, but he does not know whether you could call it a reflector
or not; it was plain enough to be seen by anybody who was on the
ground."
By another witness:
"That the light in the vestibule of a Pullman car is so located
as to illuminate the platform only; that is the purpose of that
light; that it does not throw the light more than a couple of feet
beyond the end of the bumper of the car; it is not intended to
illuminate the track."
"And thereupon, on cross-examination, said witness further
testified that such a light was not intended for a locomotive
headlight; that, if a man was standing on the track some distance
from the advancing end of a car showing such a light, he would not
see the source of the light, but would see the reflected light on
the platform on the car; he could see the illuminated end of the
car; that, if he was not looking exactly in that direction, this
light would not attract his attention away from something else;
that, if he were looking up the track, he could see the light if he
were not too far away."
And the evidence showed
"that a Pullman car running along an ordinarily straight track
at a rate of speed a little faster than a man ordinarily runs, or
can run, does not make any noise."
Landrigan was employed as a machinist and assistant boss on the
night force at the round house, which was situated between
Page 191 U. S. 467
H and I streets, on South Capitol Street. He had been employed
for eight years. His home was north of the railroad tracks on
Virginia Avenue, and the most usual and direct route to his home
from the round house was up South Capitol Street to the southwest
crossing, "then right over to the north side of Virginia Avenue,
and it was the way Landrigan usually took." On the night of the
accident, he left the round house about 11:50 o'clock, and about
twelve o'clock was found in the place and condition described in
the testimony. The night "was not a clear night, nor was it a real
dark night -- there was no moon and there were a few clouds." The
crossing was lighted up by street lamps located on each side of the
four corners, and there was an electric light in the reservation
north of the tracks, and another one south and east of the tracks
near the signal tower.
There was testimony to the effect that to a person outside of
the gate the flagman's box would
"obstruct the view of the ladder track to the east, but one
standing on the inside of the gate on the open space, you could
look straight up the track to the eastward, and there was nothing
to break your view."
And also that two freight cars obstructed the view to the
west.
There was no eyewitness to the accident, and Landrigan, in
response to the inquiry, "How did this thing happen?" replied, "I
came under the gates and something struck me, and a whole train of
cars ran over me." He died about four o'clock without making
further explanation.
At the close of the testimony, the plaintiffs in error moved the
court to instruct the jury to find a verdict for them. The court
refused, and this is assigned as error. The case was then submitted
on the evidence of the defendant in error.
Errors are also assigned upon the giving and refusing of certain
instructions.
Page 191 U. S. 471
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
The correctness of the ruling in denying the motion to instruct
the jury to find a verdict for the plaintiffs in error depends upon
the correctness of the ruling in granting or refusing the special
instructions prayed. The principles embraced in them are but
specifications of the legal propositions contained in the motion,
and upon which its soundness or unsoundness depended. If the ruling
of the court was right on those instructions, it was right on
denying the motion. We proceed, therefore, to the consideration of
the propositions embraced in the instructions.
The charge of the defendant in error is that the railroad
companies were guilty of negligence. The railroads deny this, and
claim besides that the deceased came to his death by his own
negligence, or by negligence which contributed to that result. As
an element in the question of the entire innocence of the railroad
companies, there is involved the construction and effect of the
evidence in regard to the coupling of the cars, and the sufficiency
of the light upon the Pullman car to give notice and warning of its
approach. In regard, however, to that evidence, the instructions of
the court are not questioned in this Court. No error is assigned on
them here, and whatever of argument is addressed to them or to the
evidence is intended to show that those acts, even if they were
acts of negligence, were not effective causes of the injury of the
deceased, but that his own negligence was such cause. The
determination of the contentions of plaintiffs in error therefore
depends upon the question of the negligence of the deceased, and
the instructions given in relation thereto. At the request of the
plaintiff in the action, defendant in error here, the court
instructed the jury as follows:
"1. In the absence of all evidence tending to show whether the
plaintiff's intestate stopped, looked, and listened before
attempting to cross the south track, the presumption would
Page 191 U. S. 472
be that he did. But that presumption may be rebutted by
circumstantial evidence, and it is a question for the jury whether
the facts and circumstances proved in this case rebut that
presumption, and if they find that they do, they should find that
he did not stop and look and listen; but if the facts and
circumstances fail to rebut such presumption, then the jury should
find that he did so stop and look and listen. In order to justify
them in finding that he did not, all the evidence tending to show
that should be weightier in the minds of the jury than that tending
to show the contrary."
"2, The jury are instructed that, if they believe from the
evidence that the gates at the crossing where the deceased received
his injury were generally kept down at night from 10:30 or 11
o'clock until the early morning, without regard to the approach or
presence of a car, a train or trains or locomotives, and shall
further conclude from all the facts and circumstances of the case
that the deceased had knowledge of that fact, then the circumstance
that the gates at the intersection of South Capitol Street were
down at the time of the accident was not of itself a warning to him
of the presence of danger, and contributory negligence cannot be
imputed to him from that fact alone."
"3. While knowledge by the deceased of the presence of the
Fenton engine on the north track or partly upon the South Capitol
Street crossing, and the approach of No. 78 upon one of the central
tracks at or near the time of the accident, might or would indicate
the presence of danger on or near those tracks, it is for the jury
to determine upon all the facts of this case whether it was a want
of ordinary or reasonable care and prudence upon his part to be
upon the south track at the point upon said last-named track at
which they shall find from the evidence the accident occurred."
The defendants, plaintiffs in error here, submitted instructions
to the court which were emphatic contraries of the instructions
given at the request of the plaintiff, and expressed the law to be
that the fact of the gates being down was, of itself,
Page 191 U. S. 473
a warning to the deceased, and further, if he disregarded the
warning, he was guilty of contributory negligence, and that the
gates being down, they were
"closed or lowered for all trains, cars, or engines which were
moving or passing or which might move or pass upon all or any of
said tracks at said crossing, and were a warning of danger which
the plaintiff's intestate was bound to heed, and if the jury shall
find that the plaintiff's intestate met his death by going under
said gates and upon or so near to one of said tracks as to be
struck by a car moving on said track, he was guilty of negligence
contributing to the accident, and the plaintiff cannot recover in
this action."
The following instruction was also prayed:
"It appearing from the uncontradicted evidence in the case that
the defendants maintained at all hours of the night a gateman in
charge of the gates at the crossing in question, who raised and
lowered said gates as occasion might require, and it further
appearing from such evidence that such gateman was accustomed to
open or raise said gates for the passage of pedestrians or vehicles
when it was safe to do so, and it further appearing that the
crossing in question being adjacent to the shifting, storage, and
engine yards of said defendants, and between such yards and their
passenger and freight stations in the City of Washington, and that
the main tracks leading to and from said station also passed over
the same, said crossing was an especially dangerous place, the jury
are instructed that, in the absence of any evidence tending to show
that the plaintiff's intestate, upon approaching said crossing, and
finding the gates between him and the tracks lowered or closed,
made any request of the gateman to raise or open the same, or
submitted any inquiry as to whether any engines, cars, or trains
were approaching said crossing before he went under said gates and
entered upon the crossing within the same and thereby received the
injuries which resulted in his death, said intestate was guilty of
negligence directly contributing to his own misfortune and the
plaintiff cannot recover."
(1) There was no error in instructing the jury that, in the
Page 191 U. S. 474
absence of evidence to the contrary, there was a presumption
that the deceased stopped, looked, and listened. The law was so
declared in
Texas & Pacific Railway Co. v. Gentry,
163 U. S. 353,
163 U. S. 366.
The case was a natural extension of prior cases. The presumption is
founded on a law of nature. We know of no more universal instinct
than that of self-preservation -- none that so insistently urges to
care against injury. It has its motives to exercise in the fear of
has its motives to exercise in the fear of pain, maiming, and
death. There are few presumptions based on human feelings or
experience that have surer foundation than that expressed in the
instruction objected to. But, notwithstanding the incentives to the
contrary, men are sometimes inattentive, careless, or reckless of
danger. These the law does not excuse, nor does it distinguish
between the degrees of negligence.
This was the ruling in
Northern Pacific Railroad Co. v.
Freeman, 174 U. S. 379, the
case which plaintiffs in error oppose to
Railway Co. v.
Gentry. In the
Freeman case, a man thirty-five years
old, with no defect of eyesight or hearing, familiar with a
railroad crossing, and driving gentle horses, which were accustomed
to the cars, approached the crossing at a trot not faster than a
brisk walk, with his head down, looking at his horses, and drove
upon the track, looking "straight before him, without turning his
head either way." This was testified to by witnesses. There was
direct evidence, therefore, of inattention. There is no such
evidence in this case, and the instructions given must be judged
accordingly. The court did not tell the jury that all those who
cross railroad tracks stop, look, and listen, or that the deceased
did so, but that, in the absence of evidence to the contrary, he
was presumed to have done so, and it was left to the jury to say if
there was such evidence. The instruction was a recognition of "the
common experience of men," from which it was judged in the
Freeman case that the deceased in that case had not looked
or listened, and submitted to the jury that which it was their
constitutional duty to decide. And there was enough evidence to
justify dispute, and from which different conclusions could be
drawn.
Page 191 U. S. 475
(2) We think there was no error in the instruction as to the
effect of the gates as a notice of danger under the practice of the
companies. Indeed, the instruction is so obviously right that
argument advanced to support it drops into truisms. One thing or
condition cannot be any certain evidence of another thing or
condition unless they invariably coexist. Of course, two things may
occasionally coexist, but this furnishes no argument for plaintiffs
in error. It only raises the query, when do the things coexist?
and, making an application to the pending case, when did the closed
gates and passing trains coexist? When were the former a witness of
the latter? Always? The testimony answers no. Between 10:30 and 11
o'clock at night, until morning, the gates were generally kept down
without regard to passing trains. During that time, therefore, they
had no more relation to passing trains than the signal tower or any
other inanimate object at or near the crossing. Gates at a railroad
crossing have a useful purpose. Open, they proclaim safety to the
passing public; closed, they proclaim danger; but, it is manifest,
if they be open or closed, regardless of safety or danger, they
cannot be notice of either. Counsel perceive this, and extend their
contention to urging that it is the duty of those who want to
cross, be they pedestrians or those driving teams, to seek the
gateman, and not to attempt to cross until he raise the gates.
Those driving teams must do so if they pass at all, and a
controversy such as this record presents could not occur as to
them. But there are more who walk than ride, and every time their
way is stopped by gates at a railroad crossing, must they awake a
sleeping gateman, or seek an absent one, or be charged with
negligence, and that despite the fact that the practice of the
railroad company has made closed gates not necessarily an
indication of danger? The contention makes the neglect of duty by
the railroad as efficacious as the performance of duty. At times a
railroad must have exclusive use of a crossing, but at such times
it is its duty to close the gates. The use over, it is its duty to
open them, and it cannot
Page 191 U. S. 476
neglect that duty and claim the same consequence as if it had
been performed. The instructions of the court were very guarded. It
told the jury if the gates where the injury occurred were generally
kept down at night from 10:30 or 11 o'clock, without regard to the
presence or absence of trains, and that deceased had knowledge of
that fact, then
"the circumstance that the gates at the intersection of South
Capitol Street were down at the time of the accident was
not of
itself a warning to him of the presence of danger, and
contributory negligence cannot be imputed to him from that fact
alone."
The italics are ours, and the words italicized put a careful
limitation upon the instruction, and, so limited, it was not
erroneous.
(3) It was an issue in the case whether the deceased was struck
and run over by the Pullman car or by the passenger express No. 78,
and on that issue the court instructed the jury that, if the
deceased was struck and run over by the passenger express, their
verdict should be for the plaintiffs in error. This instruction is
complained of. Plaintiffs in error contend that there was no
evidence from which it could be determined that it was the Pullman
car, and not the passenger express train, which injured the
deceased, and it was error therefore to submit the issue to the
jury. The action of the court was right. There was certainly
evidence on the issue from which reasonable men might draw
different conclusions.
As we have already seen, the most direct evidence of the passing
of the northbound express was to the effect that
"the runaway car passed the southwest crossing before 78 (the
passenger express) reached there; it struck first the middle part
of No. 78 as the train came by there; the runaway car had just
about gotten across the crossing when the engine of 78 began to
cross the crossing; it was almost about the same time."
If it be admitted that this leaves the issue in doubt, and
justifies no inference, there are circumstances to be considered.
If the deceased was struck by No. 78, it is difficult to understand
how he got to the place and in the condition he was found.
Page 191 U. S. 477
Was he hurled there by the impact of the train? If that were
possible, how came his legs to be crushed? Not by the runaway car,
because that had passed; not by train 78, for he had been cast
aside and away from that. The circumstances therefore seem to
indicate that he was not struck by train 78, but was run over by
the runaway car, and we think there is nothing inconsistent with
that conclusion in his statement. His situation was horrible. If,
in our different situation, we may venture to judge of it at all,
we may wonder that he had or could retain any perception of what
had occurred. Certainly, exact accuracy of statement could not have
been expected of him, and to his shocked and almost overwhelmed
senses it might well have seemed that not one car only, but a train
of cars had run over him. Finding no error in the record, the
judgment is
Affirmed.
