DIRECTOR GENERAL OF RAILROADS v. REYNOLDS, 268 F. 948

DENISON, Circuit Judge (after stating the facts as above). The principles which in this court govern such contentions have been stated too often to need elaboration.

Even though the evidentiary facts may not be in dispute, it. of ten happens that different minds draw different inferences therefrom, and whatever the conclusion of the judges might be, if they were triers of fact, it.is only when they are able to say that all reasonable minds must agree that there was no negligence by defendant, or that there was contributory negligence by plaintiff, that they can require a verdict to be directed upon either of these grounds. Richards v. Mulford (C. C. A. 6) 236 Fed. 677, and cases cited on page 679, 150 C. C. A. 9, on page 11.

IfReynolds were to be treated as a'trespasser upon, or in dangerous proximity to, this main track, the railroad company '-tvould owe him, under these circumstances, no duty of lookout, and there would be nothing to show negligence. Cronopolous v. Pennsylvania Co. (C. C. A. 6) 259 Fed. 210, 170 C. C. A. 278. On the other hand, if he were to be treated as a licensee, doing his work in this, way with the permission of the railroad, it would be equally clear that whether reasonable prudence by the railroad required a lookout would be a question for the jury.

Whether he should be treated as a trespasser or licensee depends upon whether there was such a customary and permissive use by the lumber company employees of the main track or its danger zone as would charge the railroad with knowledge that they were likely to be in danger, and that precautions should be taken for their safety. Hodges v. Erie Co. (C. C. A. 6) 257 Fed. 494, 168 C. C. A. 498.

If the claim that there was an implied license depended upon proof that these sections were customarily projected into the striking zone, and that the railroad employees knew it, or should have known it, there would be at least grave doubts whether the evidence should be thought sufficient, and we do not rest any conclusion upon this evidence alone.

It appeared without question that the regular methods of unloading lumber and loading material which were in use on this day had been in use for a long time; that there were, customarily, 50 or more lumber company employees constantly, engaged in this loading and unloading; that these sections were quite commonly extended, though only for a minute or two, out close to, if not into, the striking zone; that every car loaded was closed and marked by men working between the two tracks; that about half of the box cars which came in loaded with lumber (and most of the lumber came in box cars) were so loaded that the unloading work had to commence from the outside, or main track side, until enough of the load was removed to get at the other door from the inside of the car.

This railroad crew had been employed in this work for a considerable time, passing along many times a day, and they necessarily knew that the loading and unloading were done in the manner described. Knowledge of the unloading and the closing and marking of the cars is not disputed, and one or more of the train crew expressly admit knowledge of the method of loading these cars by projecting sections from the main track side, though they deny knowledge that any

section ever extended far enough to get hit. It is quite evident that men, in unloading lumber from the side of a box car, must commonly use more than four feet of space, and thus have commonly been upon the main track or within the striking zone. It is also evident that men, closing and marking cars, while they probably could always keep within the four-foot safety zone, would be very likely to overstep into danger; also, the danger that a

section might be put out one or two feet more than was intended or strictly necessary must have been obvious to any railroad employee who saw this method of loading or handling that material. In other words, the railroad company is chargeable with knowledge that SO or more lumber company employees were constantly working along this stretch of track, and that many of them were frequently along the safety zone where they were very close to danger, and that some of them were frequently actually upon the main track or in the danger .zone.

For the purposes of this question, we cannot draw, as matter of law, any nice distinction between that space where cars were being unloaded and the adjacent space where they were being loaded, nor between the four feet of supposed safety which the lumber company employees had the clear right to use and the few additional inches that they might inadvertently take.

We think the whole distance opposite the lumber company platform must be treated as a unit, and we cannot say, as matter of law, from this evidence, that the jury had no right to draw the inference that the lumber company employees were customarily in this position of danger or near danger by consent and with knowledge of the railroad company.

If the jury, as trier of the fact, found such implied license, and, as another conclusion of fact, found that the railroad company’s duty to take reasonable precautions for their safety was not satisfied without a lookout, there was lawful ground for the jury’s finding of negligence and we cannot disturb it. The fact that, if there had been a lookout, he would have seen only the extended section, and would not have known whether it came too far, is not controlling; it would be for the jury to say whether there should have been an apprehension that an injury might occur of the type that did occur.

The question of contributory negligence must be considered from the same standpoint. If the jury found this implied license, it would follow that the lumber company employees could depend upon it to entitle them to a degree of warning which trespassers could not have required. Of course, it would have been more prudent for one of the loading crew to have been watching for trouble on the main track. jVlany might think that reasonable prudence so required; but the jury had a right to conclude that the projection of the

section was intended to be only momentary, and that its extreme extent outwardly was inadvertent; that the ringing of the bell a little way up the track was natural to the switching constantly going on, and would not necessarily indicate that a car was going to be kicked or pushed backward, without lookout, past this door at that very instant; and that, if Reynolds had looked out just before that, he would have seen only a stationary freight car a car length away, not coupled .to an engine and with no engine near.

Putting these things together, we think contributory negligence does not follow as matter of law, even if rather persuasively indicated as a conclusion of fact. The judgment must be affirmed.