DUNWORTH v. GRAND TRUNK WESTERN RY. CO., 127 F. 307

JENKINS, Circuit Judge (after stating the facts as above). -If the facts, or the inferences to be drawn from them, with resp'e'ct to'‘con-tributary negligence, be doubtful, the case is one for the jury. But if from the facts disclosed the conclusion follows as a matter of law that there can be no recovery in any proper view of the facts, it -is the duty of the trial court to direct a verdict. Schofield v. Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Railway Company v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Railway Company v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L.

Ed. 485; Gardner v. Michigan Central Railroad Company, 150 U. S. 349, 361, 14 Sup. Ct. 140, 37 L. Ed. 1107; Warner v. Baltimore & Ohio Railway Company, 168 U. S. 339, 348, 18 Sup. Ct. 68, 42 L. Ed. 491; District of Columbia v. Moulton, 182 U. S. 576, 579, 21 Sup. Ct. 840, 45 L. Ed. 1237. The facts in the case at bar are without contention, and were disclosed by the evidence of the plaintiff. It was the duty of the deceased to go upon the crossing to see if a train was approaching from either direction, and to signal the mqtorman if and when the way was clear for the crossing of the street car.

But the performance of this duty did not absolve him from the duty of care with respect to his own safety. He was there to look for danger. That was his duty, not only with respect to the service in which he was engaged, but with respect to himself in the performance of that duty. These duties were concurrent. After the gates were lowered* th street car could not cross until after the passage of the freight train. The deceased had then no duty to perform with respect to the street car until the train had passed and”.the gates had been raised.

Until that should occur, duty to himself, if not to the railway company, required that lie should stand in a place of safety. There were ten feet in width of unobstructed space between the south rail of the south track and the gates, where he could have stood in absolute safety and in full view of the situation. Instead, he took his position between the rails of the south track with his back or side to the west, from which direction alone danger upon that track was to be apprehended, and, without looking to the west, watched the coming and passing of the west bound train upon the north track.

This is abundantly proven by the concurrent testimony for the plaintiff. Those speaking to the question, and who' were watching him as he stood there, saw him look but in the one direction. Such conduct can be characterized only as reckless. Without necessity he deliberately placed himself in a situation of known danger. In the open space he would have been immune from danger, and with equal facilities for seeing in both directions. He had no right to stand upon the track. Taking the risk, the consequences should not be imposed upon another. Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v.

Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific Railroad Company v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014. It is urged that, because the defendant was in fault for noncom•'pliánce with statutory regulations, contributor}'’ negligence of the party injured is unavailing as a defense, and this is said to be stated with absoluteness i-ri Deserant v. Cerillos Coal Railroad Company, 178 U. S. 409, 20 Sup. Ct. 967, 44 L.

Ed. 1127. - It was there ruled that the master’s liability to furnish a safe working place for his servant is not absolved by the concurrent negligence of a fellow servant. The charge of the trial court there under consideration contained the clause (paragraph 13, p. 417, 178 U. S., page 971, 20 Sup. Ct., 44 L. Ed. 1127) that if the servant knew of the failure of his employer to perform his statutory duty, and still remained in service in the dangerous place, he assumed the risk. This charge was not even excepted to or suggested as erroneous. The case gives no color to the contention of counsel.

The contrary principle is sustained by the Supreme Court in the cases above referred to. In Railroad Company v. Houston, supra, the court, referring to failure to sound the whistle or ring the bell, says that such failure did not relieve, from the necessity of taking ordinary precaution for safety; that negligence in these particulars is no excuse for want of ordinary care. The law furnishes no support for the contention of counsel.

It is also said that the contributory negligence of the deceased should not prevent a recovery if the locomotive engineer, in the exercise of ordinary care, might have avoided the consequence of the deceased’s negligence; and this under,the modification of the rule as held by the Supreme Court in Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railway Company v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. There are no facts disclosed in this record calling for the application of the modification of the rule.

It does not appear that the presence of the deceased upon the track was observed by the locomotive engineer, or that after seeing him, and after knowledge that he was unobservant of his danger, there was time to avoid the catastrophe.' To bring the case within the modification of the rule it is incumbent upon the plaintiff to make a showing calling for its application.