SEALEY v. SOUTHERN RY. CO. et al., 151 F. 736

WADDILL, District Judge (after stating the facts).

The first question presented for our determination is whether there was error in the action of the lower court in taking the cáse from the jury, which has necessitated a careful review of all of the evidence; and after full consideration of the same, and of the questions of law applicable thereto, the conclusion reached is that the court erred in not submitting the case to the jury, to the end that they might pass upon and determine the question of fact whether the plaintiff sustained the injury sued for by reason of his negligently and carelessly entering upon the tracks of-the defendant company, or negligently conducting himself while thereon, or from the negligent and careless manner in which the defendant company moved and operated its train of cars upon and over its said tracks, especially when running behind time, and in view of the ordinances of the town and of the state statutes regulating the movement of trains.

Upon some of the material questions necessary to a correct determination of the issues before the jury, there was a sharp conflict in the evidence. The witnesses were mainly eyewitnesses of the occurrence, in full view of all that happened; most of them of unusual intelligence, and each doubtless endeavored to give a correct statement of what he heard and saw, but nevertheless differed widely as to just what took place, and the manner and circumstances of the accident, making it eminently a case calling for the consideration of a jury.

The effect of taking the case away from the jury was to hold that as a matter of law the plaintiff was precluded from recovery, because of his failure to properly observe the approaching train before entering upon the tracks of the defendant company, or upon any theory of the case upon which the same was submitted to the jury.

It is undoubtedly true that walking upon a railroad track, with the view unobstructed, without first looking for the approach of trains, is such negligence as wilj usually defeat a recovery; but we do not think that such a-result follows necessarily from the plaintiff’s' movements in this case. The undisputed evidence is that he looked in going down the steps, within a few feet of the track of the defendant company; and that after getting down, again looked for the approach of trains, and, none being in sight, proceeded on his way over the company’s tracks to his place of business.

The most unfavorable view of the evidence to the plaintiff is that, after he had looked the second time, he walked a distance of ,30, feet along the track, then stepped upon it, without at the moment looking back.

It is not clear from the evidence that he thus stepped upon the track, or when he did so after looking; but assuming that he did walk the 30 feet after looking, he had only a moment before looked back, where he could see a distance of 300 yards, and he should not therefore be held conclusively disentitled to recover, because of-his-failure again to, look, especially as he, was observing the movements of a shifting engine in front of which he had to pass.

The case should have been submitted to the jury under such circumstances, to say, whether .the injury which befell plaintiff arose from his recklessly stepping upon ■ the'tracks or • negligently conducting- himself while thereon, or from the negligent manner in which the defendant company moved its train.

A large number of witnesses testified' that the train came into the depot behind time as aforesaid at an unusual rate of speed, from 15 to 16 miles an hour, without emitting steam dr making noise, and without ringing its bell or sounding any other signal of its approach; and these witnesses, who were standing upon the platform, or in and about the depot premises, in full view of the train, failed to observe and hear the approach of the train until it had run up to the depot, and was within a few feet of the plaintiff; all of which, together with the circumstance that the plaintiff failed to hear the approaching train until the moment it struck him, were questions properly for the consideration of the jury in determining whose negligence caused the accident.

It is not for us to say, in reviewing the action of the court taking the case from the jury, what conclusion we would have reached from the evidence; but it is our duty to determine whether the facts were or were not such that reasonably minded men might draw different conclusions therefrom as to the negligence of the defendant and the contributing negligence of the plaintiff, or whether there was such conflict in the evidence as to mate'rial facts as necessitated the submission of the case to the jury. The lower court was apparently influenced by the decision of this court in the case of R. R. Co. v. Carroll (C.

C. A.) 138 Fed. 638. We think a careful review of that case will be found to contain nothing inconsistent with the views herein expressed. The facts there were so unlike those in the present case that it cannot be said to be an authority controlling here. In that case the plaintiff, seated in a covered vehicle with the curtains drawn, and his luncheon of sardines and crackers spread on the seat beside him, on a dark and cloudy night, the wind blowing hard, driving heedlessly along in a trot, never stopped, listened, nor even looked until he reached the railroad crossing, immediately in front of a moving train.

That evidence was uncontradicted. Under such conditions, the court in that case well Said, for the plaintiff to drive upon the railroad, without taking any precautions whatever, showed a wanton disregard not only of his own safety, but of the safety of those on board the train which struck him, and he was thus guilty of willful and inexcusable negligence, arid not entitled to recover.

It is well settled by the decisions of the Supreme Court of the United States and of this court, that cases should not be withdrawn from the jury where, upon a given state of facts, reasonable men might differ as to whether there was negligence or not. Where the facts are such that all reasonable men would draw the same conclusion, then the question of negligence becomes one of law for the court to determine. Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Southern Ry. Co. v. Carroll (C. C. A.) 138 Fed. 638; Klutt v. Phila. & R. R. R. Co., 142 Fed. 394, 73 C. C. A. 494; Phila. & R. R. R.

Co. v. Klutt (C. C. A.) 148 Fed. 818, 820. It follows that from what has been said that the decision of the lower court should be reversed, and the case remanded to the Circuit Court, with instructions to grant a new trial.