WALKER et al. v. KINNARE, 76 F. 101

JENKINS, Circuit Judge, after this statement of the case, delivered the opinion of the court. An objection, preliminary to the consideration of the merits of the cause, is raised by the appellee, to the effect that the original order of reference to the master did not require him to report any conclusions of his own, either of fact or of law, upon any other subject than that of the amount of damages. This objection seems to be for the first time raised in tills court, and cannot be sustained. Upon the face of the order, we think it clear that it was the design of the court to refer the whole case to the master.

It should be read as though it required the master to report the proofs to the court, with his conclusions thereon, and as to the amount of damages, if any, which the administrator was entitled to recover under the issue. Ordinarily, in equity, references are not made or evidence taken to ascertain the damages to which a party is entitled, until it has first been determined that he is entitled to recover at all. Here the master was directed to take proof upon the issues joined by the pleadings, and report such testimony to the court, with his conclusions thereon.

If the word “conclusions” referred simply to the amount of damages, the word would have been expressed in the singular, and not in the plural. This construction of the order was the one adopted and acted upon by both parties, and by the court below.

The record discloses that the appellee filed objections before the master to the proposed report, insisting that, upon the merits xof the case, he should have made other and different findings of fact, and other and different findings of law, and requested the master to report certain findings on questions of fact upon which he had made no findings at all; and before the court he insisted that the master erred in his findings of fact, and in his refusal to find upon the questions as requested. There was no objection then taken that the order did not authorize a finding by the master upon the merits of the case.

If the order could bé construed as is now contended, the court should have stricken out the findings by the master as unauthorized; but the court ordered that the exceptions be sustained. This action by the court is a clear recognition that the order it had made required the master to report his conclusions of fact and of law upon the merits of the case. The findings by the master upon a reference by consent of the parties are to be treated as presumptively correct, and the burden is cast upon the excepting parties to show error in them. The report is not to be disregarded upon any light ground; but as Mr.

Justice Field observes in Kimberly v. Arms, 129 U. S. 512, 9 Sup.

Ct. 355, the findings of the master, like those of an independent tribunal, “are to be taken as presumptively correct, subject, indeed, to be reviewed under the reservation contained in the 'consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.” And he further observes that the findings “should have been treated as so'far correct and binding as not to be disturbed, unless clearly in conflict with the weight of the evidence upon which they were made.”' A careful review of the evidence compels us to the conclusion that the findings of fact and of law by the master were correct, and should have been sustained.

In reaching this conclusion, we assume as matter of fact that the railroad company was negligent in not seasonably causing the gates to be lowered at the crossing upon the approach of the Illinois Central train and of the engines of the Santa Fé road. We also assume that, when McMullen approached this crossing, the, gates were up, and that no flagman was stationed there, to give warning of approaching engines or cars or of impending danger, and that this was an invitation to him to go upon the crossing, and an assurance to him that no danger was impending.

All this, however, did not absolve McMullen from the duty of care proportioned to his surroundings and situation. The violation of duty by the company is not actionable, unless it be a proximate and promoting cause of the injury.

The lowering of the bars, and the presence of a flagman properly discharging his duty, are to give notice of the approach of a train; but if McMullen had such notice otherwise and in season to avoid an injury, if he was fully apprised of what the flagman or the lowering of the gates would have told him, if he knew that the train was at hand and approaching so nearly to him that he could not ■safely cross the track in front of it, he was, in his attempt to cross in front of the approaching train, guilty of negligence, which contributed to the injury, and which would prevent a recovery of damages against the company.

See Railroad Co. v. Fears, 53 Ill. 115; Railroad Co. v. Bell, 70 Ill. 102; Blount's Adm’x v. Railway Co., 22 U. S. App. 129, 9 C. C. A. 526, and 61 Fed. 375. The facts touching the conduct of the deceased lie within narrow compass. At this crossing there wore from seven to ten parallel tracks. The two most northerly of the tracks were used by the Chicago & Alton Railroad Company. The two tracks next; to the south were used by the Illinois Central Railroad Company. The two tracks next south, were used by the Atchison, Topeka & Santa Fé Railroad Company.

McMullen was 58 years of age, a millwright and machinist by trade, and for 4 months prior to this accident had been familiar with this crossing, passing it twice every day. He was a strong and vigorous man, an expert in his business, and in fnll possession of all his faculties. The accident occurred at 5 o’clock in the afternoon of the 16th of December. McMullen was returning from his place of business to his home. The street was 66 feet in width, 8 feet on either side being occupied by the sidewalk, the whole crossing being planked so that there was uo perceptible difference between the street and the sidewalk.

An Illinois Central freight train was coming from the west, and had nearly reached the crossing when McMullen •ame upon it. On the south track of the Sante Fé road two engines were backing down from the west, one closely following the other. At a point near to Main street, the engine of the Manta Fé road, which was in advance, was a little behind the engine of the Illinois Central train, and its speed was a little greater; neither engine nor train moving at a greater speed than six miles an hoar.

Upon the end of the tender of the engine first: approaching the crossing, there was a headlight, which was lighted, and the bell of the engine had been ringing continuously from the time the engine was a mile west of the crossing, when it approached, and while it was passing-over the crossing. The gate was lowered and the tower bell rung immediately after McMullen passed upon the crossing, and before the Illinois Central train had reached it.

McMullen, as the master finds, in order to cross in front of the Illinois Central train, turned and ran to the southeast diagonally across Main street and the Illinois Centra] tracks, and in front of the coming- train. After passing the Illinois Central tracks, he continued in the same general direc-tum, crossing the north track of the Atchison, Topeka & Santa Fé Railroad Company, and undertook to cross the track upon which these engines were coming, and was struck by the coming engine, and killed. The engineer, so soon as he saw McMullen, applied the brake, and reversed Ms engine.

It was quite dark at the time of the accident, a drizzling rain and snow falling. We cannot regard the conduct of McMullen under the circumstances otherwise than as reckless and inexcusable. He knew that the Illinois Central train was near to that crossing. This is made manifest by the direction which lie rook to pass in front of it. He was in a dangerous place, with which he was familiar. He knew that trains and engines were constantly passing and repassing there. His duty was that of active watchfulness. He sought to avoid a minute of delay by crossing the track upon a run in front of the coming train.

In this he succeeded; but the duty was still resting upon him to watch for trains or engines upon the six or eight tracks south of the Illinois Central track. He should have looked before putting foot upon the tracks of the Santa Fé road. If he had stopped upon the north track of that company’s road, and had then looked, he would have seen the ap: proaching engine almost directly in front of him. He could readily have stopped upon the, north track of the Santa Fé road, and have avoided the danger.

As before, with respect to the Illinois Central train, so now, with respect to the engine of the Santa Fé Company, he chose to take the risk of running across the track in advance of the engine. He either did not look to see, or, seeing, took the risk of crossing in advance of the engine. In either case his conduct was negligent and efficient to cause his death.

We cannot sustain the contention of the appellee that Mckfullen was lured into a position of sudden danger by the negligence of the company, and that, therefore, he was not chargeable with negligence, but with mere error of judgment in an emergency in which he was placed by the wrong of another. He was in no situation of danger when he saw the Illinois Central train approaching. He was in a safe position. All that he had to do was to stand still until the train had passed. He preferred to take the chance of crossing this network of tracks in front of a coming train.

To uphold such conduct would absolve the public from all duty of care at railway crossings, and give sanction to recklessness. The order of- the court of primary administration directs the payment of such claims as the present one as a preferred claims The record does not give the order appointing these receivers made in the court below.- . We assume, therefore, for this purpose, that, being entered in an ancillary suit, it was couched in the same language as the order of the court of primary jurisdiction.

The conclusion which we have reached upon the merits renders it unnecessary to give expression to any opinion upon the question whether such claims as the present one can in any just sense be preferred to the mortgage debt of a railroad company. We comment upon the terms of the order merely to observe that this court must not be deemed, sub silentio, to approve the terms of the order. We reserve our opinion upon that matter until the question shall properly be brought to our attention.

The judgment will be reversed, and the cause remanded, with directions to the court below to enter a decree in favor of the appellants, overruling the exceptions to the master’s report upon the facts, and dismissing the intervening petition of the appellee upon the merits;