Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
This suit was brought to recover damages for the death of Viola Mae Garrett, who lost her life in a railroad crossing collision on April 22, 1929. The deceased was riding in the back seat of an Overland Sedan automobile driven by her mother. The complaint consisted of five counts. The first count was based on general negligence; the second count charged the failure of appellee's train to sound a crossing warning as it approached the crossing where the accident happened, in accordance with Illinois statutes, Cahill's Rev. St. 1929, c. 114, par. 84; the third count charged that appellee willfully and wantonly failed to sound a crossing warning; the fourth count charged willful and wanton operation of the train at an excessive and unreasonable rate of speed as it approached the crossing; and the fifth count charged willful and wanton failure to keep a sharp lookout for any one who might be using the crossing. A plea of general issue was filed to all of the counts, and a special plea of contributory negligence was filed to the first and second counts.
At the conclusion of all the evidence the court directed a verdict for appellee on the ground that the evidence failed to establish willfulness or wantonness, and on the further ground that appellant's decedent was guilty of negligence which contributed to her death.
There was a sharp conflict in the evidence as to whether or not the statutory signals were given, and this fact was sufficient to require the jury's determination of that ultimate fact, unless the evidence showed that decedent was guilty of negligence which contributed to the injury, or that the accident was caused by willfulness of appellee.
After a perusal of the evidence we are convinced that there was no wantonness or willfulness shown on the part of appellee. There was no evidence upon which the jury could reasonably say that the speed of the train, under all the circumstances, was so excessive and unreasonable as to amount to willful or wanton conduct; nor that there was an intentional failure to sound the statutory warning; nor that there was an intentional failure to keep a sharp lookout for travelers about to use the crossing; nor that there was a conscious indifference on the part of the engineer in relation to these matters. The court's ruling in this respect is fully supported by the principles enunciated in Conrad v. Wheelock (D.C.) 24 F.2d 996, and cases therein cited.
The remaining question to be considered is whether or not decedent was guilty of any negligence which materially contributed to her death. If upon the facts submitted she was not guilty of such negligence, as a matter of law, this case should have been submitted to the jury, otherwise not. It will therefore be necessary to set forth only so much of the evidence as applies to the conduct and actions of appellant's decedent.
The following facts are uncontradicted: Decedent was sixteen years of age, and her eyesight and hearing were good. She was able to assist her mother in the work in and about the house, and did so, and the family had formerly lived on a farm. At and immediately preceding her death she attended high school at Jewett, a few miles east of Woodbury, and was a member of the junior class.
At the southwest corner of Woodbury a paved road running east and west, and known as U.S. Road 40, intersects a dirt road running northeast and southwest. To the south of this intersection appellee's double-track railroad runs in an easterly and westerly direction almost parallel to U.S. Road 40, and intersects the dirt road above referred to at a slight angle. The south track is used by east-bound trains and the north track by west-bound trains. Measured in the center of the dirt road, the south edge of the pavement on U.S. 40 is 103 feet from the north rail of the south track, and 87 feet from the north rail of the north track. The station, which is only 12 feet 8 inches in width, north and south, lies north of the tracks and west of the dirt road. Its southeast corner is 30 feet west of the center of the dirt road, and its northeast corner is 36 feet 8 inches west of the center of said road. From a point in the center of the dirt road where it would intersect the south line of the station, if extended, to the north rail of the south track is 39 feet, and at such an intersection of the extended north line of the station to the same rail is 53 feet. Near the southwest corner of the intersection of U.S. Road 40 with the dirt road is a highway "stop" sign. It is 17 feet 2 inches from the center of the dirt road, 35 feet south of the paved road, and 46 feet 9 inches north of the north rail of the north track. Six feet south of this sign, and 20 feet 5 inches from the center of the dirt road, is a railroad crossing sign. Both of these signs are visible to travelers on both intersecting roads. A whistle post is located along the south side of the south track at a point 1,341 feet west of the intersection of the railroad with the dirt road. The railroad tracks running west from the station are considerably higher than the surrounding ground, and beginning with a fourth telegraph pole west of the station these poles are set at or near the base of the grade. At the time of the accident a water tank stood north of the tracks at a point 1,400 feet west of the crossing. This tank and the cross-arms on the poles at the base of the grade would probably prevent a clear vision, from the pavement and perhaps some points on the dirt road north of the station, of a train approaching from the west until the train had passed the water tank. But at no point on the dirt road from the south side of the pavement to the north side of the station, or from the south line of the station to the south railroad track, was there anything to prevent a clear vision of an approaching train from the crossing to the whistle post, a distance of 1,341 feet.
On the afternoon of the accident Mrs. Garrett had driven the automobile to Jewett for her daughter, who was there in school. The daughter and a girl friend sat in the back seat, and the mother did all the driving. They came west on U.S. Road 40 to Woodbury and turned southwest on the dirt road referred to above. The automobile was stopped at a point from 6 to 10 feet south of the pavement when the friend got out of the machine and started to her home near by. The automobile then started toward the crossing, a distance of 93 to 97 feet, at a rate of speed of three to five miles an hour, and it was never stopped until it was struck by the train. When it arrived about opposite the station its speed was slackened as if it were going to be stopped, but it was not. Witnesses watched it as it was driven onto the track, at the rate of three to five miles an hour, and it was moving when hit by the train. One or more witnesses tried to attract their attention, but were unable to do so. One witness saw appellant's decedent in the automobile as it proceeded to the crossing, and she saw her do nothing but throw up her hands "in mercy" just as they drove onto the track. The accident occurred about 4 o'clock in the afternoon; the day was clear and the roads were dry. The brakes of the automobile had been tested a day or so before and were in good condition, and the windows were clean.
A person about to cross a railroad track is bound to use ordinary care under all the circumstances of the situation. If he does not do so, and is injured thereby, he is guilty of contributory negligence. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under all the circumstances of the situation; or doing what such a person, under the existing circumstances, would not have done. Shearman and Redfield on Negligence, vol. 1, § 1, note 1; Geist v. Mo. Pac. Ry. Co., 62 Neb. 309, 87 N.W. 43. Ordinary care is that degree of care which a person of ordinary prudence, under the particular circumstances, is presumed to exercise to avoid injury. Such care is required to be in proportion to the danger to be avoided and the fatal consequences that may result from the neglect. I.C. Ry. Co. v. Cheek, 152 Ind. 663, 53 N.E. 641.
When a person goes upon a railroad track he knows that he goes to a place where he may be killed if a train comes upon him before he is clear of the track. He knows he must stop for the train, not the train stop for him. In such circumstances if a driver cannot be sure otherwise whether a train is dangerously near, he must stop and get out of his vehicle, if necessary, to ascertain that fact. B. & O.R.R. Co. v. Goodman, Adm'x, 275 U.S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A.L.R. 645.
A traveler approaching a railroad crossing must look and listen at places and at times where and when his senses will give notice of approaching trains. Kutchma v. ...