KANSAS CITY, C. & S. RY. CO. v. SHOEMAKER, 249 F. 458

SANBORN, Circuit Judge, and BOOTH, District Judge. A consideration of the argument presented and the authorities cited by counsel for the plaintiff below on this motion for a rehearing has failed to convince that the instruction refused by the trial court and considered in the opinion of this court was either erroneous or clearly given to the jury in the general charge of the court below. Nor has the elaborate argument to the effect that there was substantial evidence of the negligexxce oí John Green, the

section man who was operating the motorcar, persuaded its that the court below rightly refused the request of the defendant below for a direction to the jury to return a verdict in its favor. The plaintiff was a fellow servant of John Green in the

section gang of the railway company. They were returning from work on the south end of their

section on a motorcar which Green was driving along the railroad. At a crossing of the railroad by a highway there was a collision of an automobile, which one of its occupants was driving along the highway with the motorcar and a resulting injury to the plaintiff. The highway ran east and west and the automobile came from the west. The railroad ran from southeast to northwest and the motorcar came from the southeast. Green sat on the northeast corner of the motorcar, on the side of it opposite that from which the automobile came, and did not look for or see the automobile until the collision. Two"of the

section men who were riding on the west side of the motorcar saw the automobile approaching, hut one of them testified that he said nothing because he supposed it would stop. The railroad at the crossing was on a fill or embankment 10 or 12 feet above the surrounding country, and, within 150 feet of the crossing, the highway rose by an ascending grade to the level of. the railroad. The driver of the motorcar had the right of way over the crossing.

The railroad itself was a warning of danger to the driver of the automobile, and it was his primary duty to use liis eyes and ears to look and listen for engines, cars, motorcars, and other vehicles operating upon the railroad and to stop his car before it could collide with any of them. The driver of the motorcar had the right to rely upon the legal presumption that the driver of the automobile would faithfully discharge this duty and stop his machine in time to prevent a collision.

If Green had seen the automobile approaching, and had driven his motorcar steadily on until the collision occurred, in the faith that- the driver of the automobile would stop it before it reached the railroad track, as it was his duty to do, Green would have been guilty of no breach of duty or negligence, unless he perceived that the driver of the automobile would not stop it in time to prevent the collision; and thereafter failed to exercise reasonable care to stop his motorcar so as to avoid it. St. Louis & San Francisco Railroad Co. v. Summers, 173 Fed. 358, 359, 360, 97 C. C.

A. 328, 329, 330; Illinois Central R. Co. v. Ackerman, 144 Fed. 959, 76 C. C. A. 13; Hart v. Northern Pacific Ry. Co., 196 Fed. 180, 188, 189, 116 C. C. A. 12, 20, 21; Denver City Tramway Co. v. Cobb, 164 Fed. 41, 43, 90 C. C. A. 459, 461; Iowa Central Ry. Co. v. Walker, 203 Fed. 685, 686, 121 C. C. A. 579, 580. The plaintiff below alleged, and the burden was on him to prove, the breach of duty, the negligence of Green, the driver of the motorcar, and the fact that his negligence caused or directly contributed to the collision.

Substantial evidence that Green perceived, in lime to have stopped his car and to have prevented the accident, that the driver of the automobile would not discharge his primary duty, stop his car, and prevent the collision, and that his failure to exercise reasonable care to stop his motorcar thereafter directly contributed to the injury of the plaintiff, was indispensable to the latter’s right to recover in this action. The record in this case has been searched in vain for any substantial evidence of these facts.

On the other hand, there is persuasive evidence of eyewitnesses who were upon the west side of the motorcar, and who saw the automobile approach, that when the fact appeared that its driver would not slow or stop it in season to prevent the collision, but would violate his duty and drive right on, it was too late for Green to have stopped h'is car, or to have avoided the collision. For these reasons we are of the opinion that the court below should have granted the request of the defendant to instruct the jury to return a verdict in its favor.

The motion for a rehearing must be denied. ( CARLAND, Circuit Judge, concurs in denying the motion for rehearing. ' *