US SUPREME COURT DECISIONS

Where, in an action against a common carrier to recover damages for injuries to a passenger, there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury, and this whether the uncertainty arises from a conflict in the testimony or because the facts being undisputed, fair-minded men will honestly draw different conclusions from them.

On April 11, 1886, W. D. Powers was run over by a train belonging to the Richmond and Danville Railroad Company at a station known as "Lula," and so injured that he died in a few hours. This action was brought to recover damages therefor. The plaintiffs are his children, and the proper parties, under the Georgia statutes, to maintain the action. It was commenced in the City Court of Atlanta, Georgia, and thence removed by the defendant to the Circuit Court of the United States for the Northern District of Georgia. A trial was had in November, 1888, which resulted in a verdict and judgment in favor of the plaintiffs for $9,800. On the trial, the defendant asked the following instruction:

"The undisputed fact exists in this case that the deceased man, Powers, being at the time about forty-five years of age, and, so far as the evidence discloses, in full possession of all his faculties, deliberately stepped upon the railroad track immediately in front of an engine which was running towards him at the rate of five or six miles an hour, and not more than ten feet off, and was almost instantly run over and killed."

"To say that this was an ordinarily careful act or that this conduct was not negligence on his part would do violence to a plain and well settled principle of law. Admitting that he

Page 149 U. S. 44

was a passenger, and therefore not bound, as a traveler on the highway approaching a crossing would be bound, to listen and to look both ways before attempting to cross the track, still the immediate presence, within a few feet, of a moving locomotive, would, it seems to me, have awakened all the senses of an ordinarily careful man, and would have warned him, in more ways than one, that he ought not to put himself on the track right in front of it."

"It cannot be doubted that this was a careless and dangerous step. If he had been ordinarily careful, he would not have been killed or injured even if the defendant was negligent. There is nothing in the other testimony in the case which relieves him from the consequences of this act of negligence. If he had not died, and had brought suit, he could not have recovered, nor can these plaintiffs recover, under these facts, and it is therefore your duty, under the law, to find a verdict for the defendant."