US SUPREME COURT DECISIONS

In the absence of evidence to the contrary, there is a presumption that one who was killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track.

Where it appears that it was customary to keep the gates at a railway crossing down during the night without regard to the approach or presence of cars, trains or locomotives, the fact that they are down is not of itself a chanrobles.com-red

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warning of the presence of danger to one acquainted with such custom, while crossing the track at a time when the gates were generally down.

Where it is an issue in the case whether a man was killed at a crossing by a regular train which he should know was approaching at about that hour, or by a runaway car of which he had no knowledge, and there is evidence on such issue from which reasonable men might draw different conclusions, it is not error to leave it to the jury to determine whether or not it was a want of ordinary or reasonable care and prudence for deceased to attempt to cross the track at the time and under the circumstances, the jury being charged that their verdict should be for the defendant if they found that he had been killed by the regular train.

This action was brought under the death statute of the District of Columbia for damages for the death of the husband and intestate of defendant in error. The death was the result of injuries alleged to have been caused by the negligence of the plaintiffs in error. The negligence is alleged to have consisted in the insufficient coupling of the cars of the plaintiffs in error, whereby one broke loose from the others and ran over the deceased, in not equipping the car with good brakes, and not having upon it a light sufficient to give warning of its approach. The answer was not guilty.

The case was tried to a jury, which returned a verdict in favor of the defendant in error in the sum of $6,500. This amount was agreed to as correct if the jury should find on the other issues for the defendant in error.

Judgment was entered for that amount and costs. It was affirmed on appeal to the Court of Appeals of the District.

The testimony is somewhat long, and we think it is only necessary to give an outline of what it tended to prove to illustrate and determine the questions presented.

The plaintiffs in error operated a steam railroad in the City of Washington, District of Columbia, and maintained four tracks on Virginia Avenue Southwest, crossing South Capitol Street. The most northerly of the tracks, called "The Reservation" or "No. 1" track, was used for freight and shifting purposes. The two intermediate tracks were used for southbound and northbound passenger traffic. The most southerly track was called the "ladder" or "lead track." It was so chanrobles.com-red

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called because all the tracks in the railroad yard were connected with it, and all the switches lead into it. It extended west across South Capitol Street to an alley, and terminated at what was known as the property yard, where coal, ties, iron, and other commodities were stored. Gates and a gateman were maintained at the crossing. There was evidence tending to show that the portion of this track lying west of the crossing was used for storing freight cars, but not passenger coaches, and that no portion lying west was used for shifting or making up the trains; but there was also evidence tending to show that it was so used as occasion required. Landrigan's body was found at the southwest crossing, south of the "lead track," "but nearer the track than the gate," and there was flesh and blood alongside of the track upon its south side. There was also testimony tending to show that the gates were generally kept down (one witness testified that, in his experience, they were always down) from ten or eleven o'clock at night until next morning, whether trains were passing or not, and persons with vehicles sometimes found it necessary to request the gateman to raise the gates, and sometimes to wake him up out of sleep for that purpose. Preceding and at the time of the accident, a switching crew was making up a train of cars for the transportation of troops to the south, and it became necessary to "cut out" a Pullman car, called the "Lylete," which was standing on one of the tracks. Immediately next to it was a tourist car. It was equipped with a Miller coupler; the Pullman with a Janney coupler. Both couplers were of the automatic type, but of different patterns, and not designed to couple together, and in order to draw the cars out on the "ladder" track, they were coupled together with the ordinary link and pin coupling.

There was considerable testimony as to the manner in which the coupling was done, and of its efficiency, which testimony it is not necessary to detail. It went to the jury with the other testimony. It is enough to say that the couplers were of unequal height, and the link could not be put in the slot of chanrobles.com-red

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both couplers. It was put in the slot of the Janney coupler, and the other end laid on the top of the Miller coupler, "and the only thing to keep the link from slipping over the head of the pin was a shoulder around the head of the pin." It came loose, and one of the employees, who had been in charge of the train, testified that "the couplings "slipped around," he supposed, when they were going around the curve, and that had the tendency to make them come apart; that he supposed it was due to the slack caused by coming over the switch and "the ladder" track." The "ladder" track had a slight incline to the crossing, and when the car broke loose, it started towards the crossing. An employee had tried the brake on the straight track, but when someone "hollered" that the car had broken off, he "went to work on the brake again." "It did not seem to catch hold," he testified, and he then

"dropped off the end of the car and caught the rear end of it -- the head end -- and at the same time Hottal (yardmaster) got on the end that he got off of; the witness called for Wilber to help him to put the brake on, and they did all they could to stop the car, but the car had got too much start; the brake seemed to work all right -- he did not have any fault to find with the brake, only the car had gotten too much start; he first tried the rear brake and could not get that to work; then went to the other one; while witness and Wilber were working on the forward brake Hottal jumped on and tried to work the rear brake; they did not succeed in stopping the car, because it had gotten too much of a start. He got off at South Capitol Street on the southeast side, stood there for a second or two, and then ran after the car to see what damage it had done. There were some other cars down on the end of this track, that this car ran into, and it would not have been safe for the witness to have staved on the car."

The witness testified that he

"did not know Landrigan personally; had seen him a number of times; he saw him after he was hurt; Landrigan's legs were run over, but he could not say whether it was by the car or another train; train No. 78, which

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left the depot about 11:55 or 11:35, was passing there about the time of the accident; this train No. 78 is known as the midnight express for New York, and crossed South Capitol Street, where Landrigan was hurt, going in an easterly direction; when witness saw Landrigan the latter was lying on the south side of the outside rail of the 'ladder track,' the most southerly track of the four tracks of the crossing; immediately before he saw Landrigan lying there the coach 'Lylete' passed over the crossing at South Capitol Street and witness came right along behind this car, after train 78 passed, to see if the coach had done any damage down there, and saw Landrigan lying there with someone around him; he went down where the car had stopped and came back and found out what the trouble was."

As to the position of the gates, he said:

"He first noticed the gates when he came down there after he had jumped off the end of the car; the gates were down then on both sides of the street. He did not notice the gates before 78 passed, because he had not been down that far; he stood on the southeast side of South Capitol Street until 78 passed, and then started to run down the main track, and as he ran down the track he noticed that the gates were down on both sides."

And further,

"the runaway car passed the southwest crossing of South Capitol Street before No. 78 reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of No. 78 began to cross the crossing; it was almost at the same time."

There was a white light in the dome of the vestibule of the runaway car or on the platform, and the effect of the light was testified to as follows by one witness:

"The lamp in the dome of the vestibule of the Pullman car had a white shade or globe underneath; it gave a bright light -- you could see it all right; the lamp was inside of the door, and the door was closed; the glass in the door extended about half way down, and the light shone through the glass in the door. "

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By another witness:

"That the light in the car was in the dome -- in the vestibule -- just on the outside of the door, over the platform; he knows there was a light in the west end of the car, the end going toward South Capitol Street -- which was the front end of the car the way it was moving; this light could be seen more plainly than a lamp; such lights contain two burners, are lighted by oil, and are more brilliant than a lantern; the reflector is over the top of the light; there is a kind of white shade over them; that the light in the vestibule of the car could be seen by people on the ground; it hung down low, and did not set right up in the dome; it had a shade over it, but he does not know whether you could call it a reflector or not; it was plain enough to be seen by anybody who was on the ground."

By another witness:

"That the light in the vestibule of a Pullman car is so located as to illuminate the platform only; that is the purpose of that light; that it does not throw the light more than a couple of feet beyond the end of the bumper of the car; it is not intended to illuminate the track."

"And thereupon, on cross-examination, said witness further testified that such a light was not intended for a locomotive headlight; that, if a man was standing on the track some distance from the advancing end of a car showing such a light, he would not see the source of the light, but would see the reflected light on the platform on the car; he could see the illuminated end of the car; that, if he was not looking exactly in that direction, this light would not attract his attention away from something else; that, if he were looking up the track, he could see the light if he were not too far away."

And the evidence showed

"that a Pullman car running along an ordinarily straight track at a rate of speed a little faster than a man ordinarily runs, or can run, does not make any noise."

Landrigan was employed as a machinist and assistant boss on the night force at the round house, which was situated between chanrobles.com-red

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H and I streets, on South Capitol Street. He had been employed for eight years. His home was north of the railroad tracks on Virginia Avenue, and the most usual and direct route to his home from the round house was up South Capitol Street to the southwest crossing, "then right over to the north side of Virginia Avenue, and it was the way Landrigan usually took." On the night of the accident, he left the round house about 11:50 o'clock, and about twelve o'clock was found in the place and condition described in the testimony. The night "was not a clear night, nor was it a real dark night -- there was no moon and there were a few clouds." The crossing was lighted up by street lamps located on each side of the four corners, and there was an electric light in the reservation north of the tracks, and another one south and east of the tracks near the signal tower.

There was testimony to the effect that to a person outside of the gate the flagman's box would

"obstruct the view of the ladder track to the east, but one standing on the inside of the gate on the open space, you could look straight up the track to the eastward, and there was nothing to break your view."

And also that two freight cars obstructed the view to the west.

There was no eyewitness to the accident, and Landrigan, in response to the inquiry, "How did this thing happen?" replied, "I came under the gates and something struck me, and a whole train of cars ran over me." He died about four o'clock without making further explanation.

At the close of the testimony, the plaintiffs in error moved the court to instruct the jury to find a verdict for them. The court refused, and this is assigned as error. The case was then submitted on the evidence of the defendant in error.

Errors are also assigned upon the giving and refusing of certain instructions. chanrobles.com-red

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