Schofield v. Chicago M St. P Railway Company/Opinion of the Court

The ground upon which the circuit court directed a verdict for the defendant (2 McCrary, 268, S.C.. 8 Fed. Rep. 488) was that the plaintiff, by his own showing, was guilty of contributory negligence, whatever negligence there may have been on the part of the defendant. Applying the test, that, if it would be the duty of the court, on the plaintiff's evidence, to set aside, as contrary to the evidence, a verdict for the defendant, if given, the court had authority to direct a verdict for the defendant, it considered the case under the rules laid down in Continental Improvement Co. v. Stead, 95 U.S. 161, and especially in Railroad Co. v. Houston, Id. 697, and arrived at the conclusions of law that neither the fact that the train was not a regular one, nor the fact of its high rate of speed, excused the plaintiff from the duty of looking out for a train; that the fact that it did not stop at the depot could avail the plaintiff only on the view that, hearing a whistle from it, as it was south of the depot, he supposed it would stop there, and so failed to look, but that, in such case, he would have been negligent, because it was not certain the train would stop at the depot, and he would have had warning that a train was approaching; that the neglect of the train to blow a whistle or ring a bell between the depot and the crossing did not relieve the plaintiff from the duty of looking back, at least as far as the depot, before going on the track; and that, in view of the duty incumbent on the plaintiff to look for a coming train before going so near to the track as to be unable to prevent a collision, and of the fact that he was at least 100 feet from the crossing when the train passed the depot, and could then have seen it if he had looked, and have avoided the accident by stopping until it had passed by, he was negligent in not looking.

These conclusions of law approve themselves to our judgment, and are in accordance with the rules laid down in the cases referred to. In Railroad Co. v. Houston it was said: 'The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employes, in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant.' The court added that an instruction to render a verdict for the defendant would have been proper. These views concur with those laid down by the supreme court of Minnesota in Brown v. ''Milwaukee Ry. Co.'' 22 Minn. 165, and are in accord with the current of decisions in the courts of the states. It is the settled law of this court that, when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U.S. 319; Bowditch v. Boston, 101 U.S. 16; Griggs v. Houston, 104 U.S. 553; Randall v. Baltimore & Ohio R. Co. 109 U.S. 478; S.C.. 3 SUP. CT. REP. 322; Anderson Co. Com'rs v. Beal, 113 U.S. 227; S.C.. ante, 433; Baylis v. ''Travelers' Ins. Co. 113 U.S. 316; S.C.., ante'', 494. This rule was rightly applied by the circuit court to the present case.

Judgment affirmed.