WARNER V. BALTIMORE & OHIO R. CO., 168 U. S. 339 (1897)

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U.S. Supreme Court

Warner v. Baltimore & Ohio R. Co., 168 U.S. 339 (1897)

Warner v. Baltimore and Ohio Railroad Company

No. 82

Argued November 1-2, 1897

Decided November 29, 1897

168 U.S. 339


This was an action to recover for the death of plaintiff's testator, caused by a train striking him while crossing the track of defendant's road. The results of the evidence at the trial are condensed in the statement of the case, below, which cannot well be abridged. Upon them the court below ordered a verdict and judgment in defendant's favor. Held that the peremptory instruction by the trial court and the affirmance of its action by the appellate court manifestly proceeded not on the theory that, as a matter of law, there was no negligence on the part of the defendant, but that the proof of contributory negligence on the part of the plaintiff was so conclusive as to leave no question for the consideration of the jury;

Page 168 U. S. 340

but that, apart from any question which might have arisen from the proof as an entirety, and apart from the conflicting evidence as to the failure to give warning or proper signals, in the light of the ruling in Chicago, Milwaukee &c. Railway v. Lowell, 161 U. S. 209, it is obvious there was no room reasonably to claim that it should have been determined as matter of law that the railroad company had not been negligent.

The rule of the defendant company that

"when one passenger train is standing at a station receiving or discharging passengers on double track no other train, either passenger or freight, will attempt to run past until the passenger train at the station has moved on or signal is given by the conductor of the standing train for them to come ahead, and the whistle must not be sounded while passing a passenger train on double track or sidings unless it is absolutely necessary"

is a proper one, and applies to this case.

The duty owing by a railroad company to a passenger actually or constructively in its care is of such a character that the rules of law regulating the conduct of a traveler upon the highway when about to cross and the trespasser who ventures upon the tracks of a railroad company are not a proper criterion by which to determine whether or not a passenger who sustains injury in going upon the tracks of the railroad was guilty of contributory negligence.

A railroad company owes to one standing towards it in the relation of a passenger a different and higher degree of care from that which is due to mere trespassers or strangers, and it is conversely equally true that the passenger, under given conditions, has a right to rely upon the exercise by the road of care, and the question of whether or not he is negligent under all circumstances must be determined on due consideration of the obligations of both the company and the passenger.

When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determining the matter is for the jury.

This action was begun in the Supreme Court of the District of Columbia to recover damages for the killing of the plaintiff's intestate on June 22, 1893 at a suburban station of the City of Washington, located on the line of the defendant's road, known as "University Station."

It appeared from the evidence that at the station referred to the company operated a double track road, the tracks running substantially from north to south, the southerly direction leading to Washington and the northerly direction leading away from that city. The two tracks being side by side, one consequently laid to the west and the other to the east. The distance between the rails of each track was four feet eight

Page 168 U. S. 341

and a half inches, while the distance between the east and west tracks, respectively, was seven feet five inches.

At the place in question, the station building was on the outer side of the west track, and contained a waiting room, a ticket office, and the other conveniences of a passenger station. Fronting the station building, and beside the track, was the necessary platform to enable passengers to enter or descend from any train which might there stop. In the space between the east and west track there was no platform or other facility for passengers either to enter or leave the train, but on the other side of the east track there was a platform, which was uncovered, but which was manifestly constructed for the purpose of facilitating the entry into or departure from any train which might stop at that point on the east track. These east and west platforms were connected by a plank crossing, which came opposite the center of the station building.

There was a road crossing adjoining the station, and the travel was such as seems to have necessitated the use of crossing gates and the employment by the railroad company of a gate watchman. On the east side of the track there was also a settlement known as "Brookland," and several of the witnesses who testified at the trial lived in the immediate vicinity of the station in question.

Whilst, as we have said, the substantial direction of the two tracks was north and south, nevertheless the proof showed that in the southward direction of the tracks -- that is, towards Washington -- the tracks were not perfectly straight, but were somewhat curved. As to the foregoing facts there seems from the bill of exceptions to have been no conflict of proof.

There was proof tending to show that on the morning of the accident at about 20 minutes past 7 o'clock, the deceased alighted at University Station from a local train bound to Washington. One of the stopping points of such train on the way to University Station was a small station known as "Forest Glen." After attending to some business in the neighborhood of University Station, Collis returned to that station at about half past 8 o'clock on the same morning. He was then seen engaged in conversation with several persons

Page 168 U. S. 342

in or about the station building, which we have already described. There was a local train bound out from Washington -- that is, going north -- which was scheduled to stop at Forest Glen, and which was due to arrive at University Station at nine minutes past nine o'clock, while there was an express train bound to Washington scheduled to pass the same station at eleven minutes past nine. The proof tended to show that the local train arrived at University Station a few minutes late, and that, either as it was stopping at the east platform or after it had actually stopped there, Collis, who had in his possession a return-trip ticket from University Station to Forest Glen, hurriedly went from under the arch of the station building in the direction of the local train. There was conflict in the proof as to whether, when Collis started, the local train had actually stopped on the east track or was slowing down. There was also conflict in the evidence as to where Collis was when he started to the local train. The engineer of the express train testified "that, after he got by the whistling post, he saw Mr. Collis standing on the platform, but did not think that Collis would go over," and that it was not until Collis started across that he gave the danger signals, whereas another witness for the defense testified that Collis was sitting behind the arch of the station building when the local train arrived, and, as it did so, he went around the station building, "to cross the track, and get on his train," and "started straight across; did not stop at all, and did not look in either direction." There was conflict also in the proof as to whether, in crossing towards the train, Collis went on the crosswalk connecting the two platforms, or diagonally upon the track away from the board walk, and bearing towards the local train. Some of the witnesses testified that as he started towards the local train, not being opposite a platform by which to enter a coach, he obliquely directed his course towards the south, as though to reach the platform and steps of a car on the local train, while other testimony tended to show that as he came out from under the arch, and around the building, he pursued a course directly across the track towards the local train.

Page 168 U. S. 343

The testimony, moreover, established that while Collis was making the movement towards the local train in one or the other of the modes above described, the express came down the west track, past the station, running by the standing or stopping local train at the rate of between forty and forty-five miles an hour, and that, by the train so moving, Collis was struck and killed. The proof further tended to show that there was a clear view of the track going north from the station for a considerable distance, and that there was a whistling post for the station located fifteen or sixteen hundred feet beyond the station. There was no proof, however, showing that a view of the rapidly moving express train was possible from under the archway of the station, from which some of the proof tended to show Collis came on his way towards the local train.

There was conflict in the testimony as to whether the express train whistled at the whistling post. Some of the witnesses testified that the only signal given as the train approached the station was the danger signal, which was sounded when the engine was only fifty or sixty feet from the point where Collis was killed, while others testified that a long blast for the station was sounded at the whistling post. There was no proof tending to show that any notice or warning, by sign or otherwise, was given of the danger which might be incurred if a passenger attempted to cross the west track in order to board a train on the east track, nor was there any proof offered tending to show that any warning or notice was given either by the ticket agent, gate watchman, or the employees of the local train, to passengers actually in waiting at the station, of the fact that the express train was due under its schedule, and, if on time, would pass the station without stopping, and almost simultaneously with the arrival of the local train.

It was proven that a book of rules issued by the company to its employees contained the following:

"No. 441. When one passenger train is standing at a station receiving or discharging passengers on double track, no other train, either passenger or freight, will attempt to

Page 168 U. S. 344

run past until the passenger train at the station has moved on or signal is given by the conductor of the standing train for them to come ahead, and the whistle must not be sounded while passing a passenger train on double track or sidings unless it is absolutely necessary."

While the engineer of the express train testified that coming down towards University Station he saw the local train, and did not know whether it was moving or had stopped entirely, or was going to stop or not, he also admitted that he knew of the existence of rule 441, but that "it was impossible to carry out the rule and make schedule time, and that the rule never was carried out."

At the close of the evidence for both parties, the defendant requested a peremptory instruction in its favor which the court gave, and by reason thereof the jury returned a verdict in favor of the defendant. From the judgment thereupon entered, an appeal was taken to the Court of Appeals of the District of Columbia, where the judgment was affirmed. The case was then brought into this Court by writ of error.

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